Nevada Reports 1914 (37 Nev.) PDF

37 Nev.
1, 1 (1914)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
State of Nevada
____________
JANUARY TERM, 1914
____________
37 Nev. 1, 1 (1914) Gander v. Simpson
[No. 1964]
ARNOLD W. GANDER, Respondent, v. JACOB COHN, JOHN W. O'BANION And
LOTTIE A. O'BANION (His Wife), and DANIEL C. SIMPSON, Defendants; DANIEL
C. SIMPSON, Appellant.
[137 Pac. 514]
1. Adverse PossessionAcquisition of TitleProof.
Proof that plaintiff had fenced and partially improved a tract of land established a sufficient
possession and occupancy to support title by adverse possession under Rev. Laws, sec. 4957, when
supported by proof of the other essentials necessary to the acquisition of such title, and entitled him to
judgment quieting his title in the land against a defendant who established no title thereto.
2. Adverse PossessionDeeds.
Where two claimants of uninclosed and unimproved land assert title by deed but it is impossible to
tell from the evidence which deed conveys the legal title, neither can be said to have established title by
adverse possession, both parties having paid taxes on the land and used the same for grazing purposes.
Appeal from the First Judicial Court, Lyon County; Frank P. Langan, Judge.
Action by Arnold W. Gander against Daniel C. Simpson and others. From judgment for
plaintiff, the defendant named appeals. Revised and remanded, with directions.
James R. Judge, for Appellant.
Mack & Green, for Respondent.
By the Court, Norcross, J.:
Arnold W. Gander, respondent, brought this action against Daniel C. Simpson, appellant,
and a number of others to quiet title to an undivided one-half interest in the
following-described land: The SE 1/4 of section 36, township 11 N, range 23 E, lot 1, and the
SE 1/4 of the SW 1/4 of section 1, and the NE 1/4 of the NW 1/4 of section 12, township 10
N, range 23 E, less a certain tract in the complaint described. All the defendants, other than
the appellant, Simpson, disclaimed ownership in the land. Appellant, Simpson, by his answer,
admitted title in the plaintiff to the extent of an undivided one-fourth, but denied that
defendant had any greater interest therein. Simpson also set up title in himself to an undivided
one-half interest in the land described, and prayed judgment in his favor that such interest be
quieted.
Neither the plaintiff nor the defendant traced title in themselves from the government.
Plaintiff offered in evidence a deed from Isador Cohn to Fannie Nudelman, dated June 22,
1901; from J. and Fannie Nudelman, his wife, to John W. O'Banion and Zadoc Pierce, dated
November 12, 1901; from Zadoc Pierce to plaintiff, dated May 18, 1903.
Defendant Simpson offered in evidence deeds from the Occidental Colony Company to J.
Nudelman and Ephram Friedman, dated December 14, 1898; from Ephram Friedman and
wife to A. M. Spiegel, dated October 10, 1899; from A. M. Spiegel to Jacob E. Cohn, dated
September 3, 1902; from Jacob E. Cohn and wife to defendant Simpson, dated August 13,
1906. All the foregoing deeds, whether offered by plaintiff or defendant, describe and purport
to convey the property in controversy.
There is nothing in the evidence to show from what source either Isador Cohn, plaintiff's
predecessor in interest, or the Occidental Company, defendant's predecessor in interest,
obtained title, if any such either possessed, to the land in controversy.
As neither plaintiff nor defendant established a clear legal title to the land in controversy,
plaintiff's right to the disputed one-fourth interest must depend upon adverse possession
for the statutory period of five years.
legal title to the land in controversy, plaintiff's right to the disputed one-fourth interest must
depend upon adverse possession for the statutory period of five years.
The court below found, among other facts, the following: That on the said 18th day of
May, 1903, said plaintiff, Arnold W. Gander, entered into the quiet and peaceable possession
of said undivided one-half interest in and to the property set out in his complaint, and
thereafter paid the taxes thereon, and cultivated and raised crops on said lands ever since said
date; and from the 22d day of June, 1901, said Arnold W. Gander, and his grantors and
predecessors in interest, under claim and color of title, held the quiet and peaceable
possession of said undivided one-half interest in said property. That said possession and
occupation of said lands and water rights was actual, open, notorious, and hostile to
defendants, and each of them, and has been continuous and uninterrupted ever since the said
22d day of June, 1901. That, by reason of said conveyances of said land and water rights to
said Arnold W. Gander, and by reason of the further fact of his open, notorious, continuous,
uninterrupted, hostile, and adverse possession, under title and claim of title of said lands and
water rights, from and after the 22d day of June, 1901, said plaintiff is entitled to have his
title to an undivided one-half interest in and to said lands and water rights, quieted, settled,
and confirmed to him, as prayed for in his complaint, against said defendants, and each of
them.
The land in controversy is in two noncontiguous tracts, and are separated from each other
by a distance of more than half a mile.
There is evidence showing that 80 acres of the land described is fenced, and, of this 80
acres, some 35 or 40 acres had been and was being cultivated by the plaintiff and his
predecessors in interest for more than five years prior to the institution of the suit. It is not
entirely clear whether this 80 acres under fence comprises the SE 1/4 of the SW 1/4 of section
1, and the NE 1/4 of the NW 1/4 of section 12, township 10, or is part of the 200-acre tract
to the north; but from the evidence it would appear more probable that it constitutes all
of the former tract.
section 12, township 10, or is part of the 200-acre tract to the north; but from the evidence it
would appear more probable that it constitutes all of the former tract.
It is clear that, as to the 80 acres described as inclosed by fence and partially improved, the
plaintiff has established a superior title, and is entitled to judgment, quieting title thereto.
(Rev. Laws, sec. 4957.)
As to the uninclosed land, it is impossible to say, from the evidence in the record, in whom
lies the superior title. Both parties have a deed to the undivided portion of the land in
controversy; but it is impossible to tell which deed conveys the legal title. Both parties have
paid taxes on the land, and both parties have used the land for grazing purposes. Neither has
established title by adverse possession. If the title to the land could be traced from the original
or from a common source, that would doubtless settle the controversy as to the uninclosed
and unimproved land.
The judgment is reversed, and the cause remanded, with directions to the court below to
enter judgment in favor of the plaintiff for the 80 acres of inclosed land, particularly
describing the same, and dismissing the action, without prejudce, as to the other land in
controversy, or to grant a new trial.
Talbot, C. J.: I concur.
[NoteThis case having been submitted prior to McCarran J., becoming a member of the
court, he did not participate in the decision.]
____________
37 Nev. 5, 5 (1914) Wong Kee v. Lillis
[No. 1998]
WONG KEE, Appellant, v. H. M. LILLIS, as Justice
of the Peace of Las Vegas Township,
Respondent.
[138 Pac. 900]
1. Appeal and ErrorDecisions AppealableJurisdiction.
The supreme court has jurisdiction of an appeal from an order of the district court dismissing a writ of
certiorari to review a judgment of a justice of the peace attacked on jurisdictional grounds, regardless of
the amount in controversy.
2. Justices of the PeaceCertiorariJurisdictionPresumptions.
On certiorari to review a judgment of the justice court because of a defect in the summons, the
judgment should be vacated where the docket of the justice did not affirmatively show a sufficient service
of summons.
3. IdemJurisdictionSummons.
Facts essential to establish the jurisdiction of a justice of the peace must affirmatively appear. A
recital in a justice's docket that summons was duly served or that the attorney came into court and
made return on summons as by law provided, is insufficient.
4. IdemService of ProcessSufficiency.
Where the summons issued out of justice court and served upon defendant was not signed by the
justice, it is voidable, and may be set aside upon appropriate motion.
Appeal from the Fourth Judicial District Court, Clark County; E. J. L. Taber, Judge.
Application by Wong Kee for writ of certiorari against H. M. Lillis, as Justice of the
Peace. From an order denying the writ, the petitioner appeals. Reversed and remanded, with
directions.
Richard Busteed, for Appellant.
Stevens & Van Pelt, for Respondent.
By the Court, McCarran, J.:
This is an appeal from an order of the district court of the Fourth judicial district denying
petitioner's application for a writ of certiorari to review a judgment entered by respondent as
justice of the peace of Las Vegas township against petitioner and in favor of Antonio
Mendez, plaintiff in the justice court, in the case of Mendez v. Wong Kee.
Wong Kee. In the court below petitioner prayed that a writ of certiorari be issued and directed
to the justice of the peace commanding him to transfer to the clerk of the district court a
transcript of the proceedings had in that court whereby judgment was rendered against
petitioner, and in this respect it is the contention of petitioner that the justice court had no
jurisdiction to proceed with the cause or render judgment in the case for the reason that there
was a defect in the service of summons. Petitioner's Exhibit A is a copy of the summons
served upon petitioner as defendant in the justice court, and it is admitted that the copy of the
summons as set forth in the transcript is true and correct. In that copy no signature of the
justice of the peace appears as having issued the summons. In the transcript of the docket of
the justice court the following entry appears: March 20th, Attorney Van Pelt came into court
and made a return on summons as by law provided.
[1] A motion to dismiss this appeal has been filed by respondent, and in suport of his
contention we are referred to the case of Bienenfeld v. Fresno Milling Co., 82 Cal. 425, 22
Pac. 1113, wherein the Supreme Court of California held that an appeal from a judgment and
order of the superior court, dismissing a writ of certiorari and affirming a judgment of the
district court, could not be reviewed on appeal for the reason that appellate jurisdiction of the
supreme court did not extend to such a case. But in this respect it must be observed that the
Supreme Court of California, in the case of Heinlen v. Phillips, 88 Cal. 557, 26 Pac. 366, in a
similar proceeding expressly overruled its decisions in the Bienenfeld case, and said: A
motion is made to dismiss the appeal upon the ground that, since the amount involved is less
than $300, the court is without jurisdiction. And the case of Bienenfeld v. Fresno Milling Co.,
82 Cal. 425, 22 Pac. 1113, decided by department 2 of this court, sustains the position. But
that case is in conflict with the prior decisions, which in the pressure of business were
overlooked, and we think it is best to return to the settled rule.
it is best to return to the settled rule. The point was decided in Winter v. Fitzpatrick, 35 Cal.
269, which overruled a prior case. * * * This case was approved and followed in Morley v.
Elkins, 37 Cal. 456, and Palache v. Hunt, 64 Cal. 474, 2 Pac. 245. This would seem to be
sufficient to establish the rule; and, as the department did not have before it the case
mentioned, we think that Bienenfeld v. Fresno Milling Co., 82 Cal. 425, 22 Pac. 1113, must
be overruled. The motion to dismiss is therefore denied.
Counsel for respondent refer us to the case of Andrews v. Cook, 28 Nev. 265, 81 Pac. 303,
and also to the case of Treadway v. Wright, 4 Nev. 119, and Floral Springs Water Co. v.
Rives, 14 Nev. 435. In the case of Floyd & Guthrie v. Sixth Judicial District Court, 36 Nev.
349, 135 Pac. 922, this court expressly overruled the doctrine as annunciated in the case of
Treadway v. Wright, 4 Nev. 119, and Andrews v. Cook, 28 Nev. 265, 81 Pac. 303.
It is our judgment that the doctrine annunciated in the case of Heinlen v. Phillips, supra,
establishes the better rule in a case of this kind, and this court will entertain an appeal from an
order and judgment of the lower court in certiorari from the justice court. The motion to
dismiss is therefore denied.
[2-3] On the merits of the case it must be observed that our civil practice act, applicable to
the manner of commencing actions in this justice court, prescribes that an action in the justice
court is commenced by filing a complaint and the issuance of summons thereon. The
summons must be directed to the defendant and signed by the justice. (Sections 5722 and
5727, Revised Laws of Nevada.)
The record discloses that the only matter relative to the service of summons upon the
defendant was the docket entry made on March 20, as follows: Attorney Van Pelt came into
court and made return on summons as by law provided.
In the case of McDonald v. Prescott, et al., 2 Nev. 109, 90 Am. Dec. 517, this court
established a rule directly applicable to the case under consideration and held that nothing
is presumed in favor of the jurisdiction of courts of limited jurisdiction.
applicable to the case under consideration and held that nothing is presumed in favor of the
jurisdiction of courts of limited jurisdiction. The recital that the summons was duly served,
without stating the facts as to how, when, or where it was served, is not sufficient. It is merely
the opinion of the justice that service was sufficient. Jurisdiction cannot be presumed in favor
of the justice of the peace under such circumstances. In this respect it is a rule established
almost to a degree of uniformity that nothing is presumed in favor of the jurisdiction of the
justice of the peace, and it must be affirmatively shown.
In the entry of the justice court as certified to this court, there is a total absence of any
entry as to service of summons. The bald allegation, Attorney Van Pelt came into court and
made return on summons as by law provided, conveys none of the prerequisites to give the
court jurisdiction. There is an absence of the essential requisites as to how, when, where, and
by whom service of summons was had upon the defendant. As stated by this court in the case
of McDonald v. Prescott, supra, nothing is presumed in favor of the jurisdiction of the
district court; its jurisdiction and all facts essential to establish jurisdiction must affirmatively
appear.
[4] As appears from the record in this case, the copy of the summons left with the
defendant was blank as to the signature of the justice of the peace. Service made in this
manner is voidable, and when motion is made, at the proper time, to quash the service, the
party making such motion should prevail. The mere entry of the justice of the peace that
return on summons as by law provided will not relieve such a defect. (Stewart v. Bodley, 46
Kan. 397, 26 Pac. 719, 26 Am. St. Rep. 105; Moore v. Hansen, 75 Mich. 564, 42 N. W. 981;
McDonald v. Prescott, 2 Nev. 109, 90 Am. Dec. 517; Roy v. Whitford, 9 Nev. 370.)
It follows that the order of the district court, dismissing the writ, will be vacated, and the
district court is instructed to enter an order directing the annulment of the judgment of the
justice court.
to enter an order directing the annulment of the judgment of the justice court.
It is so ordered.
____________
37 Nev. 9, 9 (1914) Lamb v. Lucky Boy Mining Co.
[No. 1976]
JOHN B. LAMB, Appellant, v. GOLDFIELD LUCKY BOY MINING COMPANY (a
Corporation) and THE GOLDFIELD ARISTOCK MINING COMPANY (a
Corporation), Respondents.
[138 Pac. 902]
1. Appeal and ErrorAssignments of Error.
In the absence of an assignment of error to the sustaining of a demurrer to the cause of action, the
ruling will not be reviewed.
2. Mines and MineralsLaborer's Liens.
Persons performing labor in the development of mining property or to facilitate the extracting of ore
have a lien upon the interest of the lessee and the owner.
3. Mines and MineralsLaborers' LiensAllegations of ComplaintKnowledge of Lessor.
Where the complaint, in an action to enforce a lien as against the owner upon mining property for
services performed for the lessee, alleged that the lease was executed by the owner for the purpose of
developing and extracting ore from the property, it must be presumed that the owner had knowledge that
laborers were being employed and materials furnished in developing the property under the lease.
4. Mechanics' LiensLaborers' Liens.
The general theory upon which all labor liens are based is that they are remedial in their nature and
intended to assist the laborer to obtain a just price for his services.
5. Mechanics' LiensNature.
Mechanics' liens are purely statutory.
6. Mines and MineralsConstruction of Statutes.
While there must be a substantial compliance with the essential requisites of the statute in order to
claim a laborer's lien, such pleadings and notices as the statute requires should be liberally construed to
promote the object to be effected, and the statute in that respect should not be construed so technically as
to destroy claimant's right to a lien.
7. Mines and MineralsLaborers' LiensEnforcement Against Lessor.
Rev. Laws, sec. 2213, provides that all laborers and others who work upon any mine in an amount of $5
or more, or furnish material, whether done or furnished at the instance of the owner or his agent, shall have
a lien upon the mine for the value of the work or materials and that every contractor, subcontractor, or
other person in charge of any mining claim shall be held to be the agent of the owner for the purposes of
the chapter. Held, that one who furnished labor in developing a mine at the instance of a lessee was entitled
to a lien on the property for his services, whether the lessee was a contractor working on the property in the
interest of the owner, or whether, under the lease, the lessee and owner were both to share in the benefits of
the lessee's work.
Appeal from the Seventh Judicial District Court, Esmeralda County; Theron Stevens,
Judge.
Action by John B. Lamb against the Goldfield Lucky Boy Mining Company and another.
From a judgment of dismissal, plaintiff appeals. Reversed and remanded.
James Donovan, for Appellant.
Thompson, Morehouse & Thompson, for Respondents.
This is an action to enforce a mechanic's lien. Two causes of action were asserted by
appellant, plaintiff in the court below. The Goldfield Aristock Mining and Leasing Company
was the lessee of those certain lode mining claims known as Lucky Boy No. 1 and Lucky Boy
No. 2. The Goldfield Lucky Boy Mining Company was the owner of the claims and the
lessor. The second cause of action relied upon by appellant is based upon services performed
upon the property and a claim of lien filed pursuant thereto by George B. Crowell, the latter's
claim of lien having been, for a valuable consideration, assigned to appellant, by reason of
which cause of action judgment is prayed for against respondents.
By the complaint of appellant it is averred that the lease executed by the Goldfield Lucky
Boy Mining Company to the Goldfield Aristock Mining and Leasing Company was for the
purpose of developing and improving and extracting ore from the Lucky Boy No. 1 and
Lucky Boy No.
Lucky Boy No. 2 lode mining claims, and it is further alleged that the lessor, the Goldfield
Lucky Boy Mining Company, had knowledge that the materials furnished by the lien claimant
were used in the development of the claims, and that the lessor had full knowledge that the
lien claimant was working on the property. It is further alleged that no notices were posted by
the lessor exempting the mining claims leased from liability for materials furnished, or for
labor performed upon or in the development of that property.
On the 20th day of August, 1908, as appears from the record, the appellant filed in the
office of the county recorder of Esmeralda County his claim of lien, duly verified by him, and
had the same recorded.
[1] A demurrer was sustained to the first cause of action, and, there being no assignment of
error as to the order of the court sustaining that demurrer, it is not involved.
Appellant, having proceeded to trial on the second cause of action, offered in evidence
George B. Crowell's notice of mechanic's lien, as filed in the office of the county recorder
August 20, 1908. An objection was interposed by the defendant upon the ground that the
offer of appellant was incompetent, irrelevant, and immaterial, and inadmissible for any
purpose in the case. The trial court, without sustaining the objection of defendants on the
ground stated, held that the lien notice was not admissible for the reason that, in order to
make the owner of the property responsible personally for that indebtedness, the work must
have been done for that owner himself.
The lien law of the State of Nevada (section 2213, Rev. Laws) provides that all miners,
laborers, and others who work or labor in the amount of $5 or more in or upon any mine, or
upon any shaft, tunnel, adit, or other excavation, designed or used for the purpose of
prospecting, draining, or working any such mine, and all persons who shall furnish any timber
or other material, to the value of $5 or more, to be used in or about any such mine, whether
done or furnished at the instance of the owner of such mine, or his agent, shall have and
may each respectively claim and hold a lien upon such mine for the amount and value of
the work or labor so performed or material furnished.
done or furnished at the instance of the owner of such mine, or his agent, shall have and may
each respectively claim and hold a lien upon such mine for the amount and value of the work
or labor so performed or material furnished.
In the notice of mechanic's lien, filed by George B. Crowell and offered as evidence in the
court below, the lien claimant asserts the Goldfield Aristock Mining and Leasing Company to
be the agent of the Goldfield Lucky Boy Mining Company. It also asserts that the Goldfield
Lucky Boy Mining Company is the reputed owner of the Lucky Boy No. 1 and Lucky Boy
No. 2. The lien notice is sufficient in other respects and substantially conforms to the
requirements of the statute.
In appellant's second cause of action it is alleged that the Goldfield Aristock Mining
Company was the lessee of the Goldfield Lucky Boy Mining Company, and that the lease
given by the latter to the former was for the purpose of developing and improving and
extracting ore from the Lucky Boy No. 1 and Lucky Boy No. 2. Nothing is alleged in either
the lien notice filed by Crowell, or in the complaint of appellant, as to the terms of the lease,
or as to whether or not the lessor is to receive any part or percentage of the proceeds or
mineral productions that might be derived from the mining operations.
The trial court offered to enter judgment against the respondent Goldfield Aristock Mining
and Leasing Company as lessee. This the appellant refused to accept, stating that the company
was insolvent, and that the judgment against it was of no value.
There is practically but one question before this court to determine in this case, namely: Is
the mining property of a lessor to be held liable for materials furnished and labor performed
on the property at the instance or request of the lessee?
It is our judgment that the trial court took an erroneous view of the matter presented. It
must be observed at the outset that from the pleadings and record in this case it is disclosed
that the respondent, the Goldfield Lucky Boy Mining Company, admits the services
performed and the materials furnished, as alleged in appellant's second cause of action,
but, in this respect, they allege that the materials were furnished and services were
performed at the instance and request of the Goldfield Aristock Mining and Leasing
Company, the lessee, and that, as a lessor, the Goldfield Lucky Boy Mining Company was
not responsible for the debts incurred by its lessee in the mining operations carried on
under the lease.
Boy Mining Company, admits the services performed and the materials furnished, as alleged
in appellant's second cause of action, but, in this respect, they allege that the materials were
furnished and services were performed at the instance and request of the Goldfield Aristock
Mining and Leasing Company, the lessee, and that, as a lessor, the Goldfield Lucky Boy
Mining Company was not responsible for the debts incurred by its lessee in the mining
operations carried on under the lease. They further contend that the mining claims of the
lessor cannot be bound by the lien.
In dealing with this subject, the courts of the land have not been at all harmonious. The
Supreme Court of Colorado, in dealing with this subject under a statute exempting the
leaseholder in certain instances, has held that a mechanic's lien will not attach to the interest
of the owner of the mine for work done or material furnished in working or developing a
mine, where the work is done or material furnished at the instance of, or under a contract
with, one whose only interest is that of lessee. (Wilkins v. Abell, 26 Colo. 462, 58 Pac. 612.)
The Supreme Court of Colorado has on several occasions referred to the case of Wilkins v.
Abell, supra, and on each occasion has reaffirmed the rule as there laid down. In the case of
Little Valeria Gold M. & N. Company v. Ingersoll, 14 Colo. App. 240, 59 Pac. 970, that
court, after referring to their decision in the case of Wilkins v. Abell, said: There must be
some showing to the point that the owner of the realty was in some manner obligated, either
because he was a privy and party to the contract of employment, or because, in some other
way than by the lease, he authorized the lessee to contract, or because the agreement, by its
terms, gave the lessee authority.
In the case of Griffin v. Hurley, 7 Ariz. 399, 65 Pac. 147, that court laid down the rule that
the interest of the lessee is alone liable.
In the case of Gould v. Wise, 18 Nev. 257, 3 Pac. 30, this court, speaking through Mr.
Justice Belknap, held, in substance, that the interest of a lessor may be subjected to lien
claims, notwithstanding the labor and material were not furnished at his instance, if,
knowing that alterations or repairs were being made or were contemplated, he failed to
give notice that he would not be responsible therefor.
subjected to lien claims, notwithstanding the labor and material were not furnished at his
instance, if, knowing that alterations or repairs were being made or were contemplated, he
failed to give notice that he would not be responsible therefor.
In the case of Rosina v. Trowbridge, 20 Nev. 105, 17 Pac. 751, this court approvingly
referred to the case of Gould v. Wise, supra, and held, in substance, that the interests of the
owner or owners of mining claims were chargeable with a lien for labor performed on a
claim, although such labor was performed at the instance and request of one in the position of
lessee. In that case the court held that the lease and contract entered into between the owners
and the lessee constituted notice to the lessor of the work and improvements being done on
the mine, and that, to have avoided liability, it was the duty of the lessor to comply with the
statute and post notice to the effect that they would not be responsible for material furnished
or labor performed.
[2] The general underlying principle in cases of this kind is that those performing labor in
the development of mining property, or rendering services to facilitate the extracting of ore,
discovered or undiscovered, have a lien for such labor upon the interest of the lessee and the
owner. Work performed in mining property, whether it be in the extracting of precious
metals, or in increasing the facilities for their extraction, or in sinking, driving, or tunneling,
with the view of discovering ore, all of such work alike inures to the development of the
property and to the benefit of the lessor.
[3] It is alleged by the appellant in this case, and his allegation in this respect is not
controverted by the answer of respondent, that the lease under and by reason of which the
Goldfield Aristock Mining and Leasing Company operated the mining property was given to
that company by the Goldfield Lucky Boy Mining Company, the owner of the property, for
the purpose of developing and improving and extracting ore from the property. From this it
must be presumed, even though it were not admitted by the pleadings, that the
respondent, the Goldfield Lucky Boy Mining Company, had notice and knowledge that
such work was going on and that laborers were being employed and materials were being
furnished in furtherance of the development and improvement of the property under the
terms of the lease.
even though it were not admitted by the pleadings, that the respondent, the Goldfield Lucky
Boy Mining Company, had notice and knowledge that such work was going on and that
laborers were being employed and materials were being furnished in furtherance of the
development and improvement of the property under the terms of the lease.
The Supreme Court of Missouri, in dealing with the question of estates affected by
mechanics' liens where the leasehold was a building, held that the lessor who authorized the
lessee to make improvements which effected the substantial betterment of the reversion at the
expiration of the term impliedly constitutes the lessee his agent for the purpose of subjecting
the lease held to liens for material furnished or labor performed. (Dougherty-Moss Lumber
Co. v. Churchill, 114 Mo. App. 578, 90 S. W. 405.)
In the case of Higgins v. Carlotta Gold Mining Company, 148 Cal. 700, 84 Pac. 758, 113
Am. St. Rep. 344, the Supreme Court of California, in construing the provisions of a statute
similar to ours, said: The purpose of the statute obviously is to allow a lien for mining work
done upon a mine against the estate or interest therein of the person who is to be benefited
thereby, whether done directly for him and at his request, or indirectly for his benefit, at the
request of some other person operating in pursuance of some express or implied contract with
him. In that case the court held that, where the lessor or owner of the property posted no
notice disclaiming liability for labor performed or material furnished, it followed as a
consequence that his estate in the property stands charged with a lien for the value of such
labor.
[4] The general theory upon which all labor liens, or mechanics' liens, are based is that
they are remedial in their natureintended to aid the laborer who gives his services, or the
materialman or merchant who furnishes his goods or wares, to secure the contract price or at
least a just price for the services or material furnished. This is based on the principle that the
material used or the labor performed upon a specific property has enhanced its value, and
that it is right that the person furnishing material may follow his material into the
structure of which it became a part, or that the laborer should pursue the result of his toil
in order to secure his just compensation because the structure is the result of the material
furnished, or the labor done, and it is just that the owner thereof should not acquire the
benefits of the labor or the improvements accruing from the material without
compensating the person furnishing such labor or material.
labor performed upon a specific property has enhanced its value, and that it is right that the
person furnishing material may follow his material into the structure of which it became a
part, or that the laborer should pursue the result of his toil in order to secure his just
compensation because the structure is the result of the material furnished, or the labor done,
and it is just that the owner thereof should not acquire the benefits of the labor or the
improvements accruing from the material without compensating the person furnishing such
labor or material.
[5] Mechanics' liens are purely creatures of statute, and the right to enforce such liens
emanated entirely from statutory provisions. The property that may be subject to lien, the
class of laborer that may have the benefit of lien, the time within which and the manner in
which a lien may be enforced are all matters which rely entirely upon statutory provisions.
The several statutory enactments in the states in which the right of lien exists are the basis
for the many decisions rendered by courts of last resort in dealing with this subject, and hence
we find a lack of unity in the expressions of the courts upon the various phases that have
arisen. The right of lien was unknown at common law, and had no place in equity
jurisprudence. The principle itself, although having sanction in the civil law, had its statutory
initiative in the spirit of justice to give to every person of ordinary intelligence the means
whereby he might be secured for services rendered or materials furnished. The general
principle upon which the statute laws relative to mechanics' liens is grounded being broad, it
follows that it was never intended that provisions of the law should furnish a snare and
involve claimants in the intricacies of pleading.
[6] Hence, while there must be a substantial compliance with the essential requisites of the
statute, such pleadings and notices as the law requires should be literally construed in order
that justice might be promoted and the desired object might be effected.
It has been held that, while courts always require a substantial compliance with the statute
in regard to the statement in the notice of lien and the proceedings thereunder, yet they will
not give the statute such a narrow or technical construction as to fritter away, impede, or
destroy the right of the lien claimant. (Castagnetto v. Copper Town M. & L. Co., 146 Cal.
329, 80 Pac. 74.)
[7] By the provisions of our statute the right of lien was granted to persons furnishing
timber or other materials to be used in or about any mine and also to laborers and others who
work or labor in or upon any mine, shaft, tunnel, adit, or other excavation designed for the
purpose of prospecting, draining, or working any such mine. This right of lien is provided for
whether the work is done or the material furnished at the instance of the owner of the property
in person, or of his agent. By the provisions of the statute, it is expressly stated that every
contractor, subcontractor, architect, builder, or other person in charge or control of any
mining claim or any part thereof shall be held to be the agent of the owner for the purpose of
the application of the law.
If the lease in question, given by the Goldfield Lucky Boy Mining Company to the
Goldfield Aristock Mining Company, was given with the sole object and view of prospecting
the property, or of improving the property in the way of determining the existence of ore
bodies thereon, or for the extraction of ores without any provision for the lessee to acquire
benefit from the ore extracted, then the lessee was a contractor, working on the property in
the interest of the lessor, and must be held to be the agent of the owner, under the provisions
of section 1 of our lien law. On the other hand, if, by provision of the lease under which the
Goldfield Aristock Mining Company operated the property, the lessor was to derive a
stipulated benefit from the ores extracted by the lessee or some share in the net profits derived
from the property, then the lease was a contract between the parties, and by its covenants the
lessee undertook to do the mining work, and both the lessee and the lessor were to share in
the proceeds and the benefit of the work.
to share in the proceeds and the benefit of the work. Hence the lessor was not only the
indirect, but the direct, beneficiary of the labor performed in the property and all the material
furnished therein, and it is obviously the intent of the statute and manifestly its spirit to allow
a lien for mining work done upon a mine against the estate or interest therein of the person
who is to be benefited thereby. (Higgins v. Carlotta Mfg. Co., 148 Cal. 700, 84 Pac. 758, 113
Am. St. Rep. 344.)
The rule as established by this court in the case of Gould v. Wise, supra, and Rosina v.
Trowbridge, supra, has never been questioned or modified by this court since its
establishment, and we see no occasion at this time for the establishment of a different rule,
notwithstanding the fact that many courts have held to the contrary. The statute makes
provisions as to how a lessor may relieve himself and his estate from liability as against lien
claimants, and, where one fails to throw about himself the protection which the statute
affords, he cannot in justice remain silent and receive the benefit of labor and services
performed on his estate and then avoid liability for a just compensation therefor.
One other point is raised by appellant in this case, namely, that the court erred in
dismissing the action. It is manifest, however, that had the court admitted in evidence the
notice of lien offered by appellant it would not, as a matter of course, have dismissed the
action; hence it is unnecessary for us to dwell upon this phase.
The order sustaining respondents' objection to the admissibility of the lien notice and the
judgment of dismissal are reversed, and the case remanded.
____________
37 Nev. 19, 19 (1914) State v. Lamb
[No. 2098]
STATE OF NEVADA, Ex Rel. M. SUGARMAN, Petitioner, v. S. G. LAMB, as Sheriff of
Humboldt County, Respondent.
[138 Pac. 907]
1. ReplevinReturn of Property to Defendant.
Rev. Laws, sec. 5128, relating to actions to recover possession of personal property, declares that the
defendant may, within two days after the service of a copy of the affidavit and the undertaking, give
notice to the sheriff, who has seized the property, that he excepts to the sureties, and, if he fails to do so,
he shall be deemed to have waived all objection to the sureties. Section 5129 declares that, at any time
before the delivery of the property to the plaintiff, the defendant, if he does not except to the sureties,
may claim the property upon giving to the sheriff a written undertaking executed by two or more sureties,
and section 5130 declares that the defendant's sureties, upon notice to the plaintiff of not less than two or
more than five days, shall justify before the clerk or judge in the same manner as upon bail on arrest, and
upon justification the sheriff shall deliver the property to the defendant. Held, that justification by
defendant's sureties upon notice to plaintiff was a condition precedent to the delivery of the property to
him; the plaintiff not being required to justify his sureties unless called upon by the defendant.
2. CourtsMandamusOriginal Writ by Supreme Court.
In an action for the possession of personal property, where the sheriff redelivered it to defendant,
although defendant's sureties had not justified in accordance with the statute, and the trial court refused to
issue a writ of mandamus compelling the sheriff to deliver the property to the plaintiff, plaintiff is entitled
to petition the supreme court for the issuance of an original wit of mandamus, having exhausted his
remedies below.
3. MandamusPossession of PropertyDuty of Sheriff.
In an action for the possession of personal property, the sheriff, after seizing it, redelivered it to the
defendant, although defendant's sureties on his undertaking had not justified themselves before the clerk
or the court as required by statute. The property still remained within the county. Held that, as Rev. Laws,
sec. 5127, requires the sheriff, upon receipt of the affidavit, notice, and written undertaking executed by
the plaintiff, to take the property and retain it in his custody until delivery to plaintiff or redelivery to the
defendant after justification of the latter's sureties, the sheriff will by an appropriate writ of mandamus be
compelled to retake the property and deliver it to plaintiff; the defendant having waived exceptions to
plaintiff's sureties and not having established his own right to a return.
37 Nev. 19, 20 (1914) State v. Lamb
4. ReplevinFees and Expenses of Sheriff.
Under Rev. Laws, sec. 5133, the sheriff may retain possession of property taken in claim and delivery
until his fees and expenses are paid.
Original proceeding by the State, on the relation of M. Sugarman, for a writ of mandamus
against S. G. Lamb, Sheriff of Humboldt County. Writ issued.
Salter & Robins and Geo. B. Thatcher, for Petitioner.
C. A. Gillette and Thomas A. Brandon, for Respondent.
This is an original proceeding in mandamus. The petitioner was the plaintiff in an action
for claim and delivery in the district court of Humboldt County. After the regular
commencement of his action, by the filing of complaint and the issuance of summons,
petitioner, in compliance with chapter 20 of the civil practice act of this state, claimed the
delivery of certain personal property enumerated in his petition. In accordance with his claim
he made an affidavit setting forth the essential requisites under the civil practice act, and
thereby required the respondent, as sheriff of Humboldt County, that being the county in
which the personal property was situated, to take the personal property from the defendant.
It is admitted by the pleadings in this case that all of the steps necessary to justify the
sheriff in taking possession of the property from the defendant were accomplished by the
petitioner, as plaintiff in the case below. From the petition and answer in this proceeding it
appears that the respondent, as sheriff, nominally took possession of the personal property.
Petitioner alleges that more than five days elapsed and no notice was served on him, as
plaintiff in the action in the lower court, by respondent, or by any other person, that defendant
required the return of the personal property, or that the defendant had given to the respondent
a written undertaking as prescribed by section 1S7 of the civil practice act, and no notice
had been served on petitioner that defendant's sureties would justify before the judge of
the district court, in which court the action was pending, or before the clerk of that court,
as prescribed by section 1SS of the civil practice act {Rev. Law, sec.
37 Nev. 19, 21 (1914) State v. Lamb
a written undertaking as prescribed by section 187 of the civil practice act, and no notice had
been served on petitioner that defendant's sureties would justify before the judge of the
district court, in which court the action was pending, or before the clerk of that court, as
prescribed by section 188 of the civil practice act (Rev. Law, sec. 5130). After the expiration
of five days from the date of the taking of the property by the respondent, petitioner made
demand on the respondent for the delivery of the property to him under section 187 of the
civil practice act.
In the answer filed by respondent it is claimed that the defendant, in the action in the lower
court, made demand and delivered an undertaking to respondent within five days from the
date of the taking of the property by respondent, and that thereafter the sureties on the
undertaking qualified before a notary public in and for the county of Humboldt. Respondent
further states that the undertaking was approved by him in his official capacity as sheriff, and
that after the delivery of the undertaking to respondent he returned the property to defendant.
Having surrendered possession of the property, respondent alleges that he has not now legal
control thereof.
[1] In our practice in matters of claim and delivery, section 5128, Revised Laws,
prescribes: The defendant may within two days after the service of a copy of the affidavit
and the undertaking, give notice to the sheriff that he excepts to the sufficiency of the
sureties. If he fails to do so, he shall be deemed to have waived all objection to them. When
the defendant excepts, the sureties shall justify on notice in like manner as upon bail on
arrest; and the sheriff shall be responsible for the sufficiency of the sureties until the objection
to them is either waived, as above provided, or until they justify. If the defendant except to
the sureties he cannot reclaim the property, as provided in the next section.
As appears from the record in this case, the defendant in the lower court did not except to
the sufficiency of plaintiff's sureties given in the latter's undertaking in claim and delivery;
hence it follows that the defendant is deemed to have waived all objections that he might
have to the sureties offered on the undertaking of plaintiff.
37 Nev. 19, 22 (1914) State v. Lamb
plaintiff's sureties given in the latter's undertaking in claim and delivery; hence it follows that
the defendant is deemed to have waived all objections that he might have to the sureties
offered on the undertaking of plaintiff. The defendant having failed or refused to avail
himself of the right of excepting to the plaintiff's sureties, he had the right to demand of the
sheriff the return of the property taken as soon as he had complied with the provisions of
section 5129 and section 5130, Revised Laws.
Section 5129 (section 187 of the civil practice act) prescribes: At any time before the
delivery of the property to the plaintiff, the defendant may, if he do not except to the sureties
of the plaintiff, require the return thereof, upon giving to the sheriff a written undertaking,
executed by two or more sufficient sureties, to the effect that they are bound in double the
value of the property, in gold coin of the United States, as stated in the affidavit of the
plaintiff, for the delivery thereof to the plaintiff, if such delivery be adjudged, and for
payment to him of such sum, in gold coin of the United States, as may for any cause be
recovered against the defendant. If a return of the property be not so required within five days
after the taking and serving of notice to the defendant, it shall be delivered to the plaintiff,
except as provided in section 192.
Section 5130, being section 188 of the civil practice act, prescribes: The defendant's
sureties, upon notice to the plaintiff of not less than two or more than five days, shall justify
before the judge or the clerk in the same manner as upon bail on arrest: and upon such
justification, the sheriff shall deliver the property to the defendant. The sheriff shall be
responsible for the defendant's sureties until they justify, or until the justification is completed
or expressly waived, and may retain the property until that time. If they or others in their
place, fail to justify at the time and place appointed, he shall deliver the property to the
plaintiff.
Under the provision of the statute quoted above, where the defendant requires the return
of the property and, pursuant to his requirement, gives a written undertaking to the
sheriff, the plaintiff is not required to except to the sufficiency of the sureties on the
defendant's undertaking.
37 Nev. 19, 23 (1914) State v. Lamb
the defendant requires the return of the property and, pursuant to his requirement, gives a
written undertaking to the sheriff, the plaintiff is not required to except to the sufficiency of
the sureties on the defendant's undertaking. On the contrary, the defendant must take the
initiative and after giving notice to plaintiff, of not less than two days nor more than five
days, proceed to have his sureties justify, either before the judge of the court in which the
action was instituted, or before the clerk of that court, in the same manner as upon bail on
arrest. These several acts are prerequisites to the return of the property to the defendant by the
sheriff. After the sheriff has taken possession of the personal property in an action of this
character, he is required by the statute to retain possession of the property until the time has
expired in which the defendant may take advantage of the provision of the statute be demand
for the return of the property and by filing his undertaking, giving notice to the plaintiff and
justifying his sureties. But if a return of the property be not required by the defendant, within
the time prescribed, or, if having made demand, the defendant fails to notify the plaintiff and
fails to justify his sureties on the undertaking offered, the sheriff must, under the provisions
of the statute, deliver the property to the plaintiff, unless the property taken be claimed by a
third party, in which instance section 192 of the civil practice act (Rev. Laws, sec. 5134)
prescribes the procedure to be followed.
After demand is made by the defendant for the return of the property and an undertaking is
filed by him, should the plaintiff expressly waive justification of the sureties on the
undertaking, such waiver, when filed and presented to the sheriff, would have the same force
and effect as though the sureties had justified, and the sheriff would be authorized to restore
the property to the defendant.
The Supreme Court of Montana, in a proceeding analogous to the one at bar, and under
statutory provisions the same as ours, said: If we are to arrive at the legislative intent from
the language employed by the legislature, it becomes apparent at once that the duty is
imposed upon the defendant, who seeks to recover the possession of his property in a
claim and delivery action, to have the sureties on his redelivery bond justify as a condition
precedent to his right to the return of the property.
37 Nev. 19, 24 (1914) State v. Lamb
the legislative intent from the language employed by the legislature, it becomes apparent at
once that the duty is imposed upon the defendant, who seeks to recover the possession of his
property in a claim and delivery action, to have the sureties on his redelivery bond justify as a
condition precedent to his right to the return of the property. In other words, when the
defendant seeks a redelivery of his property, he must tender to the sheriff a redelivery bond
and give notice to the plaintiff of not less than two or more than five days that the sureties
will justify before the judge or clerk of the court, in the manner provided for the justification
of sureties upon bail on arrest. (State, ex rel. Johnson, v. Collins, Sheriff, 41 Mont. 526, 110
Pac. 526.)
The interpretation of the statute as set forth in the case of Johnson v. Collins, supra, we
believe to be the correct one, and being applicable to the matter at bar, and being under
identical statutory provisions, it is our judgment that the rule there annunciated is decisive of
the matter under consideration. To the same effect is the holding of the Supreme Court of
California, in the case of Ryan v. Fitzgerald, 87 Cal. 345, 25 Pac. 546.
[2] This matter having been presented to the court below by affidavit and application for a
writ of mandamus commanding the sheriff to deliver the property to the plaintiff, and that
court having refused to issue the writ, it is our judgment that the petitioner has exhausted his
remedies in the district court and is entitled to have the matter heard and determined by this
court. (State, ex rel. Johnson v. Collins, supra.)
[3] Respondent in his answer sets forth that, having returned the property to the defendant
prior to the time at which the petition for writ was filed in this court, he is not in possession
of said property, nor has any legal control thereof. In this respect the verified reply of
attorneys for petitioner asserts that, at the time of the taking of possession of the personal
property by the sheriff under the order for claim and delivery, the property was situated in a
room in Golconda, Humboldt County, and that the property is still in the room at that
place, and that there has been no change in the situation of the property, excepting that
the sheriff delivered the key of the room containing the property to the defendant in the
case below.
37 Nev. 19, 25 (1914) State v. Lamb
County, and that the property is still in the room at that place, and that there has been no
change in the situation of the property, excepting that the sheriff delivered the key of the
room containing the property to the defendant in the case below. From this it appears that the
property is still in Humboldt County and so situated that respondent may immediately take
possession of it, if, as a matter of fact, his erroneous act of delivery to the defendant ever
really divested him of possession or control.
The law requires the sheriff, upon the receipt of the affidavit, notice, and written
undertaking provided for in section 5127, Revised Laws, to forthwith take the property
described in the affidavit and retain it in his custody. The law presumes that the sheriff shall
retain custody of the property until he delivers the same to the plaintiff or until he delivers the
same to the defendant, if the latter makes demand for the return thereof and complies with the
provisions of the statute heretofore discussed.
In an action for claim and delivery after the officer has taken possession of the property,
and between that time and the time it is delivered to either of the parties to the action, the
property is in custody of law. The wrongful delivery of the property to either party to the
action does not relieve it from this rule. The sheriff, in an action of this kind, is charged under
the law with the duty of ultimately delivering the property to one of the parties to the
litigation. (Welter v. Jacobson, 7 N. D. 32, 73 N. W. 65, 66 Am. St. Rep. 632.) The sheriff, in
an action of this character, is charged under the law with the duty of finally delivering the
property to one of the parties to the litigation. It follows, where the record discloses that the
property, although wrongfully put out of the hands of the sheriff, is still within the county, the
sheriff may, and it is his duty to, retake the property.
Where, in an action in claim and delivery, the property is seized by a sheriff and afterwards
released to the defendant upon a forthcoming bond, it is still in the custody of the court in
which the action was instituted, and remains in the custody of that court to abide the
result of the replevin suit.
37 Nev. 19, 26 (1914) State v. Lamb
of the court in which the action was instituted, and remains in the custody of that court to
abide the result of the replevin suit. (34 Cyc. p. 1381.) In this case, the sheriff having
erroneously released the property to the defendant, after that property was taken by him as an
officer of the court, it is still in contemplation of the law in his control and possession.
It is manifest from the record in this case that defendant, in the action in claim and
delivery, failed to comply with the terms of the statute in that no notice was given to the
plaintiff, and the sureties on the undertaking of defendant did not justify, as prescribed by
section 188 of the civil practice act. In fact, on the part of the defendant, there was no
compliance with the statute. It was therefore the duty of the sheriff, upon receipt of his lawful
fees for taking and the necessary expenses for keeping, to deliver the property to the plaintiff.
[4] If the party entitled to receive the possession of the property from the sheriff failed or
refused to pay the officer his lawful fees for taking the property and the necessary expenses
incurred in keeping the property, it was the privilege of the sheriff to retain possession until
such fees and expenses were paid. (Section 5133, Revised Laws.)
It follows that the respondent in this case should immediately retake the property
enumerated in the petition herein, or as much thereof as was enumerated in the affidavit and
notice originally received by him in the action in claim and delivery, and upon receipt of his
lawful fees, at the time at which he delivered the property to the defendant, and the necessary
expenses incurred by him to that time, deliver the property to petitioner herein.
The writ as prayed for should issue. It is so ordered.
____________
37 Nev. 27, 27 (1914) Robinson M. Co. v. Riepe
[No. 1925]
ROBINSON MINING COMPANY, Appellant, v. RICHARD M. RIEPE, HENRY FULMER,
ROY R. IVES, Doing Business Under the Firm Name and Style of Fulmer & Ives,
Respondents.
[138 Pac. 910]
1. CorporationsTransfer of SharesRefusal to TransferSufficiency of Evidence.
In an action against a corporation for conversion of stock by refusing to register its transfer on its
books, evidence held to support a finding that the transfer was a bona fide transaction.
2. ConversionIssuesProof and VarianceDate of Conversion.
In an action against a corporation for conversion of stock in refusing to register its transfer on its
books, it was not necessary that the proof should be in strict conformity with the averment as to the date
of conversion.
3. ConversionRefusal of Corporation to Transfer StockConditions Precedent to Action.
Where the secretary of a corporation refused to register a transfer of stock when presented by the
transferee, no formal demand was necessary before bringing an action for conversion, since the refusal
was an assertion of ownership by the corporation.
4. Appeal and ErrorFindingConclusiveness.
Where there is a substantial conflict in the testimony, the appellate court will not substitute its
judgment for that of the trail court, and will only interfere when it is clear that a wrong conclusion was
reached.
5. ConversionRefusal of Corporation to Transfer StockMeasure of Damages.
In an action against a corporation for the conversion of stock in refusing to register its transfer on its
books, the measure of damages was the value of the stock at the date of conversion, with legal interest
from the conversion to judgment.
6. New TrailNewly Discovered EvidenceDiligenceAffidavit.
Where, on motion for new trial on the ground of newly discovered evidence, the affidavit of the
moving party merely stated conclusions as to exercise of diligence, without setting out the facts, so that
the court could draw its own conclusions, it was insufficient.
7. New TrialNewly Discovered EvidenceDiligence.
Where the alleged newly discovered evidence would consist of the testimony of witnesses who
resided at the place of trial and were present at the trial to the knowledge of the moving party, or who
testified as witnesses in the case, sufficient showing of diligence is not made out.
8. New TrialNewly Discovered EvidenceImpeaching Evidence.
It is not abusive of discretion to refuse a new trial upon alleged newly discovered evidence where
such new evidence is only of an impeaching character.
Appeal from the Fourth Judicial District Court, White Pine County; George S. Brown,
Judge.
Action by the Robinson Mining Company against Richard A. Riepe, Henry M. Fulmer,
and others. From a judgment for defendant Fulmer on his cross-complaint, plaintiff appeals.
Affirmed.
S. W. Belford, for Appellant.
Chandler & Quayle and Gilbert A. McElroy, for Respondent.
This is an appeal from an order of the Ninth judicial district court denying appellant's
motion for a new trial. Judgment in this case was rendered on the counterclaim interposed by
Henry M. Fulmer, who was made defendant in an action brought against himself, together
with other defendants, by the appellant corporation. Respondent Fulmer's cause of action was
acquired by him through assignment from one E. W. Hulse. The latter had purchased from
Fulmer 21,500 shares of the capital stock of appellant corporation, giving in payment thereof
his personal promissory note unsecured and $100 in coin. The secretary of the appellant
corporation refused to transfer the stock on the books of the company when Hulse presented
the certificate purchased from Fulmer. Respondent Fulmer consented to a rescission of the
contract existing between himself and Hulse relative to the purchase of the stock; the stock
being returned to Fulmer, together with an assignment of Hulse's cause of action. Hulse
received back his $100 in coin, and also the promissory note.
received back his $100 in coin, and also the promissory note.
The appellant company moved the trial cout to set aside the decision and judgment, and
grant a new trial thereof upon the counterclaim of Henry M. Fulmer against appellant upon
the following grounds: FirstThat the evidence is insufficient to justify the judgment of the
court in favor of defendant Henry M. Fulmer, and against plaintiff, * * * and that said
judgment is against the law. SecondThat the said plaintiff Robinson Mining Company has
newly discovered evidence to offer in its behalf material for the plaintiff, and pertaining to the
said claim of the said defendant Henry M. Fulmer, against the defendant, which it could not
with reasonable diligence have discovered and produced at the trial.
Respondent Fulmer's cause of action, as set forth in his counterclaim, being an action in
trover, was based upon the assignment of a cause of action accruing in favor of Hulse, due to
the fact that the appellant company, having refused to transfer the shares of stock upon its
books, had converted the stock to its own use to the damage of Hulse; Hulse's cause of action
having been assigned to Fulmer.
[1] The record in this case discloses a series of most peculiar transactions. In Fulmer's
counterclaim it is asserted that the conversion took place on the 17th day of June. The
testimony of D. W. Ellis, secretary of the appellant company, is as follows: Mr. Hulse
approached me on the street, and I refused to cut up the stock. There was some little
discussion there; but I did not give him any reason at that time. When he handed me the stock
at the office I told him the reason I would not cut up that stock was because it was pooled. I
was under the impression that the pool was not out yet; but I was wrong in that impression.
There were a few further reasons which I would not state at that time. The company had
grievances against several people; but I did tell him there were other reasons.
The testimony of Fulmer and Hulse, as disclosed by the record, substantiates a bona fide
transaction in the transfer of the stock from the latter to the former. Although the transaction
itself was one of an unusual character, and perhaps subject to some suspicion, there is nothing
disclosed that would cause one to believe that it was other than that of a bona fide nature.
Fulmer's acceptance of an unsecured promissory note in payment for a large sum of money,
and his delivery of the stock to Hulse upon receipt of that note, is emphasized by the
appellant as indicating a suspicious transaction; but the dealings of men in matters of this
character cannot be viewed with suspicion merely because one appears to place unusual faith
in the honesty of another. After the company had refused to transfer the stock for Hulse, or to
cut it up, as he terms it, Fulmer's act in permitting a rescission of the contract between
himself and Hulse appears from the record to have been one of a voluntary nature, by which
he gave back what he had received for Hulse, and in return accepted the stock from Hulse and
an assignment of the latter's cause of action against appellant. Nothing in these transactions
would indicate anything other than a peculiar yet honest dealing between the two men.
Prior to the assignment of Hulse's cause of action to Fulmer it is admitted that he had
instituted proceedings in mandamus to have the stock transferred. With reference to Hulse's
cause of action against appellant corporation, which cause of action was assigned to Fulmer,
and upon which cause of action judgment is rendered in favor of Fulmer, it is alleged in the
counterclaim that the presentation of the stock was made on the 17th of June. The testimony
both of the witness Ellis and Hulse discloses that this presentation was made upon the street,
in the way of a request by Hulse to have the stock cut up. A subsequent presentation was
made in the office of the company. The secretary of the company, Mr. Ellis, to whom this
request was made, both on the 17th of June and on the next occasion, whether it be on the
18th, 19th, or 20th, refused to transfer the stock; the principal reason given to Hulse at that
time by the secretary being that the stock was still in pool, but in his testimony at the trial
it is disclosed that there were other reasons in his mind.
reason given to Hulse at that time by the secretary being that the stock was still in pool, but in
his testimony at the trial it is disclosed that there were other reasons in his mind.
He says: There were other reasons which I would not state at the time. The company had
grievances against several people; but I did tell him [Hulse] there were other reasons.
In his cross-examination Mr. Ellis states: Well, the board of directors, Mr. Dickerson and
Mr. O'Neil, we knew they were selling that stock for a great deal less than they should sell it
for, and that the stock belonged to the company, and it was the 50,000 shares that we had that
I had notified Mr. Dickerson and Mr. O'Neil that was still left, and that we would take some
action in regard to having it put back into the treasury. I did not want to make any more
certificates on that account.
[2] As to whether or not the conversion actually took place on the 17th of June is
immaterial. It was not necessary at common law, and is not necessary under our practice, that
the proof should be in strict conformity with the averment as to date of conversion, and the
allegation as to the time of conversion is immaterial. This point has been heretofore settled by
this court. (Hixon v. Pixley, 15 Nev. 475; Bancroft v. Haslett, 106 Cal. 151, 39 Pac. 602.)
[3] Appellant contends that the evidence is not sufficient to support the judgment, because
there was no evidence to support a formal demand for the transfer of the stock to any specific
person, or in any designated number of certificates. The rule applying to this contention, as
well as to that of the variance in time, is well established, and is well stated by a very recent
case decided by the Supreme Court of Oklahoma, in which that court held that, in a suit for
conversion of personal property, where the taking possession and conversion is wrongful, no
demand is necessary before bringing suit, for the wrongful taking and conversion is an
assertion of ownership. (Bilby v. Jones, Okl. 136 Pac. 414.)
From the testimony of the witness Ellis, it is disclosed that, upon instruction from the
board of directors, he refused to transfer the stock when the same was presented by
Hulse.
that, upon instruction from the board of directors, he refused to transfer the stock when the
same was presented by Hulse. It was immaterial as to whom Hulse might have requested the
stock to be made out, or as to how the certificate was to be cut up. The conversion took place
when the refusal was made to transfer the stock. This of itself constitutes an assertion of
ownership on the part of the appellant corporation, acting through its instructed
representative, the secretary. It is not contended that any different postion would have been
taken by the appellant corporation with reference to the transfer of the stock, had Hulse
designated the names of the parties to whom the stock was to be made out.
[4] The findings of the trial court upon the facts presented by the evidence, in so far as that
evidence is disclosed by the record, is in our judgment substantiated. If there is any conflict, it
is our judgment that it is a conflict that is substantial, and it is a rule long since established by
this court that, where there is a substantial conflict in the testimony, this court will not
substitute its judgment for that of the trial court, and will only interfere when upon all of the
evidence it is clear that a wrong conclusion has been reached. (Watt v. Nev. Cen. R. R. Co., 23
Nev. 154, 44 Pac. 423, 46 Pac. 52, 726, 62 Am. St. Rep. 772; Potosi Zinc Co. v. Mahoney, et
al., 36 Nev. 390, 135 Pac. 1078.)
The testimony of Hulse and Fulmer and the entire transaction between them as related by
the record is not entirely free from suspicion. On the other hand, the record fails to clear the
appellant of suspicion. There are transactions set forth by the record on the part of both
parties that demand careful scrutiny. However this may be, there is nothing in the record
relative to the transaction between Hulse and Fulmer that would justify a court of review in
saying that their testimony was utterly untrustworthy. In a case of this character it was the
duty of the trial judge to determine from all the facts before him the truth or falsity of the
testimony as given by the respective parties and the several witnesses.
given by the respective parties and the several witnesses. In this respect it appears from the
decision of the trial judge in the files of this case that he carefully considered everything
applicable to the case as it was presented to him, and after a careful scrutiny said that he saw
no reason why he should refuse to believe the evidence of Hulse and Fulmer, or that there
was other than a bona fide transfer of the 21,500 shares of stock from Fulmer to Hulse prior
to the demand made upon the appellant for the transfer of the stock upon its books. The trial
judge having considered the testimony of Hulse and Fulmer worthy of credit, the evidence is
sufficient to sustain the judgment. (Pinschower, et al., v. Hanks, 18 Nev. 99, 1 Pac. 454.)
[5] In fixing the value of the stocks at the time of conversion, the trial court determined on
40 cents per share. The appellant company, in its complaint, alleged that the stock of the
company was worth 50 cents per share at the time of bringing suit. This allegation was not
denied by respondent in his answer. The witness Hulse testified: I could not get Robinson at
that time [referring to the time of the refusal of appellant to transfer the stock] for less than 40
cents, except this large block of stock which I purchased at a smaller figure. * * * I had a few
sales on at 40 cents.
This point has been settled by this court, and the rule established that in cases of this
character the damages which necessarily follow from the wrongful act of conversion are the
value of the property at the time of conversion, with legal interest from conversion to
judgment. (Boylan v. Huguet, 8 Nev. 345; Ward v. Carson R. Wood Co., 13 Nev. 44.)
[6] In furtherance of their motion for a new trail appellant sought to rely upon newly
discovered evidence, and in support thereof they filed the affidavit of Denver S. Dickerson,
president of the appellant corporation, supported by the affidavits of George Devecmon and
Anthony Jurich.
It appears from the written decision of the trial court, made a part of the record in this
case, that the affiant Devecmon was a witness at the trial, and that the affiant Jurich had
also been present during the trial, and had formerly been an attorney for the defendants.
made a part of the record in this case, that the affiant Devecmon was a witness at the trial, and
that the affiant Jurich had also been present during the trial, and had formerly been an
attorney for the defendants. While the record does not bear this out in other respects than by
the written decision of the trial judge, his remarks in that respect are not controverted, hence
we assume that they are correct. Regardless of what may be stated in the affidavits of Jurich
and Devecmon, the affidavit of D. S. Dickerson, representing the moving party, is the one
that must be especially subject to scrutiny, because, to entitle a party to anew trial on the
ground of newly discovered evidence, it must be shown by the moving party, or his
representatives, that such evidence could not with reasonable diligence be discovered and
produced at or during the trial. It must be shown that the same is true, and it is in the affidavit
of the moving party that the facts must be set out showing the diligence used to procure such
evidence.
The affidavit of the affiant Dickerson, after setting forth his official position as president
of the corporation, sets forth: That, prior to and during the trial of the above-entitled cause,
he endeavored with all reasonable diligence to assist the plaintiff in procuring evidence, and
in ascertaining the facts out of which said controversy arose. That he has read the affidavit of
Anthony Jurich, and that the contents thereof were not known to affiant prior to or during the
trial of the said cause, and that he first learned of such facts set forth in said affidavit after the
decision had been filed in said cause. Affiant further states that he could not have procured
such testimony in time for the use thereof at the trial, nor with reasonable diligence could he
have so procured it.
The declarations of diligence in this affidavit are mere conclusions, and set out no showing
of diligence or facts from which diligence might be inferred. Where newly discovered
evidence is asserted as grounds for a new trial, the affidavit of the moving party is the basic
thing upon which a new trial may be granted, because it is in that that a trial court must find
the essential elements necessary to authorize it to act in granting a new trial, and, unless
these essentials are set forth, the court is not warranted in disturbing the judgment.
that that a trial court must find the essential elements necessary to authorize it to act in
granting a new trial, and, unless these essentials are set forth, the court is not warranted in
disturbing the judgment. (Ward v. Voris, 117 Ind. 368, 20 N. E. 261.)
[7] If the witnesses from whom this newly discovered evidence is to be obtained were
witnesses at the trial, or were present in court during the trial, their testimony if material,
could have been procured by reasonable diligence. If they were really in possession of the
facts set forth in their affidavit, inquiry on the part of the representatives of the appellant
company would have disclosed these facts, and their testimony could have been produced at
the trial. It has been held that a motion for a new trial on the grounds of newly discovered
evidence is properly denied, where the proposed new witnesses were residents of the city
where the trial was held, and one or both were present at the trial to the knowledge of the
moving party, and their testimony, if material, could have been procured by reasonable
diligence. (Goodeve v. Thompson, Or. 136 Pac. 670.)
[8] Moreover, the newly discovered evidence as set forth by the affidavits of the proposed
witnesses in this case savors strongly of being impeaching in character. While the record
before us as to the testimony given at the trial is not entirely complete, the trial judge was in a
position to know whether or not it was true, and his refusal to grant a new trial, if the
proposed newly discovered evidence was of an impeaching nature, was no abuse of
discretion. (Whise v. Whise, 36 Nev. 16, 131 Pac. 967, 44 L. R. A. n. s. 689; Armstrong v.
Yakima Hotel Co., Wash. 135 Pac. 233.)
Moreover, the statements made by the affiant Dickerson, representing the moving party, to
the effect that he endeavored with all reasonable diligence to assist the appellant in
procuring evidence, and ascertain the facts out of which such controversy arose, and, nor
with reasonable diligence could he have so procured it, are too general. This matter has been
decided by the case of Pinschower, et. al., v. Hanks, supra, wherein this court said: "The
acts performed by them [the moving party] should be particularly stated, so as to enable
the court to determine whether the conclusions stated in the affidavit are supported by
the facts.
of Pinschower, et. al., v. Hanks, supra, wherein this court said: The acts performed by them
[the moving party] should be particularly stated, so as to enable the court to determine
whether the conclusions stated in the affidavit are supported by the facts. It is the duty of the
litigant to be active and diligent in procuring the testimony upon which they rely to maintain
their cause. Trials are not to be encouraged as experiments. A party is not allowed to present
his case by piecemeal; to take a part of the facts first, and then, if he fails, apply for a new
trial, and seek to strengthen his case by a statement of other facts which were reasonably
within his power to present at the first trial. He must make diligent search and inquiry in
advance of the trial, and be able to show, to the satisfaction of the court, that he used
reasonable diligence.
Whatever may be said as to the peculiarities of the transactions on the part of the
prevailing party to this judgment, or whatever may be said as to the peculiar attitude of the
representatives of the appellant corporation relative to their refusal to transfer the stock when
the same was presented by Hulse, the trial judge had opportunity to view the witnesses and
observe their attitude upon the stand, and, unless the record brought to this court showed
evidence which preponderated against his judgment, his determination of the case should not
be interfered with.
In denying the motion for anew trial upon the ground of newly discovered evidence, it is
our judgment that no error of law was committed, and there was no abuse of discretion.
It follows that the order of the trial court in refusing a new trial should be affirmed, and it
is so ordered.
____________
37 Nev. 37, 37 (1914) State v. Brodigan
[No. 2108]
STATE OF NEVADA, Ex Rel. EMILIO DOTTA, Relator, v. GEORGE BRODIGAN, as
Secretary of State, Respondent.
[138 Pac. 914]
1. Constitutional LawReferendum Provisions.
Const. art. 19, sec. 1, declares that, whenever 10 per cent of the voters shall express their wish
that any law or resolution of the legislature shall be submitted to a vote of the people, the officers charged
with the duty of announcing elections shall submit the question to be voted on. Section 2 declares that, if
a majority of the voters at an election shall signify approval of a law or resolution, such law shall stand
or, if the majority be against it, it shall be void. Section 3 declares that the electors reserve to themselves
the power to propose laws and propose amendments of the constitution, and to enact or reject the same at
the polls independent of the legislature, that the first power is the initiative, and no more than 10 per cent
of the qualified voters shall be required to propose any measure, and that initiative petitions, except in
municipal legislation, shall be filed with the secretary of state not less than thirty days before any regular
session of the legislature, and the secretary shall transmit the same to the legislature as soon as it
convenes, and that the second power by the people is referendum, which shall be exercised in the manner
provided. Held that, while this article declares that it shall be self-executing, yet it does not impose upon
the secretary of state the duty to file a referendum petition for the submission of an act of the legislature
to the voters of a county at the next general election, and hence the filing of such a petition cannot be
coerced by a mandamus for, though a constitutional provision declares it shall be self-executing, yet, if it
does not provide for the manner of its execution, the execution must be provided for by statute.
2. Constitutional LawReferendumConstruction.
The provisions of section 3 of article 19 of the state constitution that the second power reserved by
the people is the referendum, which shall be exercised in the manner provided in sections 1 and 2, apply
to state elections.
3. Constitutional LawReferendumSelf-Executing Provisions.
While it is provided that the provisions of article 19 shall be self-executing, but legislation may be
enacted to facilitate its operation, the further provision that the legislature may provide by law for the
manner of exercising the initiative and referendum powers as to county and municipal legislation, makes
it apparent that it was intended that further legislation should be enacted for carrying into effect that part
relating to county matters, as the article itself makes no such provision.
Original proceeding. Petition by the State, on the relation of Emilio Dotta, for writ of
mandamus directed against George Brodigan, as Secretary of State. Petition denied.
Otto T. Williams, for Relator.
Geo. B. Thatcher, Attorney-General, and Milton B. Badt, for Respondent.
By the Court, Talbot, C. J.:
Relator, as a taxpayer, applies for a writ of mandamus commanding respondent, as
secretary of state, to file a referendum petition which asks for the submission to the qualified
voters of Elko County, upon the official ballot at the next general election, of the act passed at
the last session of the legislature, entitled An act to authorize the board of county
commissioners of the county of Elko, State of Nevada, to issue bonds to provide for the
construction, equipment, and furnishing of a high-school building in the town of Wells,
Nevada, and authorizing the county board of education of said county to construct, equip, and
furnish said building.
It is alleged that the number of signatures of qualified voters appearing on the petition
presented to the secretary of state is more than 214; that the total vote cast in Elko County for
justice of the supreme court at the last general election was 2,015, and that the petition was
signed by more than 10 per cent of the qualified electors of that county.
The constitution, as amended by article 19, provides:
Section 1. Whenever ten per centum or more of the voters of this state, as shown by the
number of votes cast at the last preceding general election, shall express their wish that any
law or resolution made by the legislature be submitted to a vote of the people, the officers
charged with the duty of announcing and proclaiming elections, and of certifying
nominations, or questions to be voted on, shall submit the question of approval or disapproval
of said law or resolution to be voted on at the next ensuing election wherein a state or
congressional officer is to be voted for, or wherein any question may be voted on by the
electors of the entire state.
next ensuing election wherein a state or congressional officer is to be voted for, or wherein
any question may be voted on by the electors of the entire state.
Sec. 2. When a majority of the electors voting at a state election shall by their votes
signify approval of a law or resolution, such law or resolution shall stand as the law of the
state, and shall not be overruled, annulled, set aside, suspended, or in any way made
inoperative except by the direct vote of the people. When such majority shall so signify
disapproval the law or resolution so disapproved shall be void and of no effect.
Sec. 3. The people reserve to themselves the power to propose laws and the power to
propose amendments to the constitution and to enact or reject the same at the polls,
independent of the legislature, and also reserve the power at their option to approve or reject
at the polls, in the manner herein provided, any act, item, section or part of any act or measure
passed by the legislature, and section one of article four of the constitution shall hereafter be
considered accordingly. The first power reserved by the people is the initiative, and not more
than ten per cent (10%) of the qualified electors shall be required to propose any measure by
initiative petition, and every such petition shall include the full text of the measure so
proposed. Initiative petitions for all but municipal legislation, shall be filed with the secretary
of state not less than thirty days before any regular session of the legislature; the secretary of
state shall transmit the same to the legislature as soon as it convenes and organizes. Such
initiative measure shall take precedence over all measures of the legislature except
appropriation bills, and shall be enacted or rejected by the legislature, without change or
amendment, within forty (40) days. If any such initiative measure so proposed by petition as
aforesaid, shall be enacted by the legislature and approved by the governor in the same
manner as other laws are enacted, same shall become a law, but shall be subject to
referendum petition as approved in sections one and two of this article.
If said initiative measure be rejected by the legislature, or if no action be taken thereon within
said forty (40) days, the secretary of state shall submit the same to the qualified electors for
approval or rejection at the next ensuing general election; and if a majority of the qualified
electors voting thereon shall approve of such measure it shall become a law and take effect
from the date of the official declaration of the vote; an initiative measure so approved by the
qualified electors shall not be annulled, set aside or repealed by the legislature within three
(3) years from the date said act takes effect. In case the legislature shall reject such initiative
measure, said body may, with the approval of the governor, propose a different measure on
the same subject, in which event both measures shall be submitted by the secretary of state to
the qualified electors for approval or rejection at the next ensuing general election. The
enacting clause of all bills proposed by the initiative shall be: The People of the State of
Nevada do enact as follows.' The whole number of votes cast for justice of the supreme court
at the general election last preceding the filing of any initiative petition shall be the basis on
which the number of qualified electors required to sign such petition shall be counted. The
second power reserved by the people is the referendum, which shall be exercised in the
manner provided in sections one and two of this article. The initiative and referendum powers
in this article provided for are further reserved to the qualified voters of each county and
municipality as to all local, special and municipal legislation of every character in or for said
respective counties or municipalities. The legislature may provide by law for the manner of
exercising the intiative and referendum powers as to county and municipal legislation, but
shall not require a petition of more than ten per cent (10%) of the qualified electors to order
the referendum or more than fifteen per cent (15%) to propose any municipal measure by
initiative. If the conflicting measure submitted to the people at the next ensuing general
election shall both be approved by a majority of the votes severally cast for and against each
of said measures, the measure receiving the highest number of affirmative votes shall
thereupon become a law as to all conflicting provisions.
cast for and against each of said measures, the measure receiving the highest number of
affirmative votes shall thereupon become a law as to all conflicting provisions. The
provisions of this section shall be self-executing, but legislation may be especially enacted to
facilitate its operation.
Under section 5695 of the Revised Laws the writ of mandamus may be issued by the
supreme court, the district court, or a judge of the district court, to compel the performance of
an act which the law especially enjoins as a duty resulting from an office, trust or station.
Do these constitutional provisions direct the secretary of state to file a petition which asks
for the submission of an act of the legislature to the voters of the county at the next general
election? Before he can be compelled to act, he must be derelict in the performance of some
duty which the wording of the amendment imposes. It is urged that the language of section 3
provides that it shall be self-executing. If it be conceded that sections 1 and 3, and any
constitutional or statutory provisions, are self-executing, whether so specifying or not, it
cannot well be said that an office is required to do more than is directed by the language used.
The provision in section 1 that officers charged with the duty of announcing and
proclaiming elections, and of certifying nominations or questions to be voted on, shall submit
the question of the approval or disapproval of a law, cannot be held to require the secretary
of state to make such submission to the voters of a county only when that section relates to
submission to the voters of the state, and when he is not required by any statute to certify
nominations or questions to the voters of a county only.
The provision in section 3 that the second power reserved by the people is the
referendum, which shall be exercised in the manner provided in sections 1 and 2, apparently
applies to state elections, when considered in connection with the following sentence, which
states that the initiative and referendum powers are further reserved to the electors of each
county as to local and special legislation; and from that part of section 3 which designates
that "the legislature may provide by law for the manner of exercising initiative and
referendum powers as to county legislation, but shall not require a petition of more than
ten per cent of the qualified electors to order the referendum."
reserved to the electors of each county as to local and special legislation; and from that part of
section 3 which designates that the legislature may provide by law for the manner of
exercising initiative and referendum powers as to county legislation, but shall not require a
petition of more than ten per cent of the qualified electors to order the referendum. It is
apparent that it was intended that further legislation should be enacted for carrying into effect
that part of section 3 which relates to county matters. If the section be properly considered as
self-executing, as it states, this is true only so far as it designates a method of exercising these
powers or regarding those things which are specified in the earlier part of the section. It
nowhere directs the secretary of state to file a referendum petition for submission of a law to
the voters of a county. Hence it does not appear that the duty of filing such a petition is
enjoined upon him. In order to be enforced, constitutional provisions should be as clear as
statutory ones, or, if they direct an officer to act under existing laws, it should appear that he
is required by the statute to perform the act sought to be enforced.
In State, ex rel. Moncure, v. Dubuclet, 28 La. Ann. 698, it was held that the high bequests
of the organic law are not always self-enforcing, especially when they do not provide the
method for their practical use, and that the manner in which its commands are to be obeyed is
often left to be provided by the legislative branch of the government.
In Long v. City of Portland, 53 Or. 92, 98 Pac. 149, 1111, it was held that an article in the
constitution reserving initiative and referendum powers to the voters of every municipality as
to municipal legislation, to be exercised in the manner prescribed by general laws, was not
self-executing, as it did not lay down the rules by means of which the right reserved may be
given the force of law.
In Railroad v. Lawrence County, 27 Ill. 52, the court said: "As a general proposition,
subject, however, to some exceptions, it may be safely asserted that the constitution
cannot execute its own provisions independent of legislative enactment.
said: As a general proposition, subject, however, to some exceptions, it may be safely
asserted that the constitution cannot execute its own provisions independent of legislative
enactment. In this case it no doubt not only authorizes but requires the general assembly to
make all necessary provisions to carry this requirement into effect.
As said in Washingtonian Home v. Chicago, 157 Ill. 427, 41 N. E. 896, 29 L. R. A. 798:
Where the constitution requires the performance of an act, but provides neither officers, the
means, or the mode in which the act shall be performed, in such a case there is no other
means of carrying such a provision into effect but by appropriate legislation. In such cases the
constitution does not execute such provisions.
Other cases support these conclusions: Brown v. Seay, 86 Ala. 122, 5 South. 216; Kiernan
v. City of Portland, 57 Or. 454, 111 Pac. 379, 112 Pac. 402, 37 L. R. A. n. s. 339; Ex Parte
Wall, 48 Cal. 279, 17 Am. Rep. 425; Williams v. Mayor of Detroit, 2 Mich. 565; 8 Cyc. 752,
753, 755, 756, 758, 759.
The petition for the writ is denied.
____________
37 Nev. 44, 44 (1914) State v. Bonnifield
[No. 2084]
STATE OF NEVADA, Ex Rel. C. E. HAVILAND, WILLIAM H. COOPER, and JAMES P.
BYRNES, as the Board of County Commissioners of Humboldt County, State of
Nevada, Appellants, v. S. J. BONNIFIELD, as County Auditor of Humboldt County,
State of Nevada, Respondent.
[138 Pac. 906]
1. CountiesCounty AuditorDuty to ReportCollections During Preceding Term of
Office.
Where a county auditor was his own successor in office, he was bound to make the joint report
required by Rev. Laws, sec. 3746, requiring the county auditor and county treasurer to make a joint
statement to the board of county commissioners, showing the amount of collections, etc., though such
report should have been made during the preceding term, since the duty was a continuing one. State v.
Kirman, 17 Nev. 380, distinguished.
2. MandamusProceedingsParties Defendant.
In mandamus proceedings by the board of county commissioners to compel the county auditor to
make the joint report required by Rev. Laws, sec. 3746, requiring the county auditor, jointly with the
county treasurer, to make a report of the amount of collections, etc., the county treasurer was not a
necessary party, where it appeared that he was willing to perform his part in making the report.
Appeal from the Sixth Judicial District Court, Humboldt County; Peter Breen, Judge,
presiding.
Petition for a writ of mandate by the State of Nevada, on the relation of C. E. Haviland
and others, against S. J. Bonnifield, County Auditor. From a judgment dismissing the
petition, relators appeal. Reversed and remanded.
J. A. Callahan, for Appellant.
W. S. Bonnifield, for Respondent.
This is an appeal from a judgment of dismissal following the sustaining of a demurrer to a
petition for a writ of mandate.
[1] A proceeding in mandamus was instituted in the Sixth judicial district court in and for
Humboldt County by the state, on the relation of the board of county commissioners of
Humboldt County, against the respondent, as auditor of said county, to require
respondent, in conjunction with the county treasurer of said county, to make certain
quarterly reports, relative to the fiscal affairs of said county, as required by the provisions
of Revised Laws, sec.
Sixth judicial district court in and for Humboldt County by the state, on the relation of the
board of county commissioners of Humboldt County, against the respondent, as auditor of
said county, to require respondent, in conjunction with the county treasurer of said county, to
make certain quarterly reports, relative to the fiscal affairs of said county, as required by the
provisions of Revised Laws, sec. 3746.
The petition or affidavit which was filed February 3, 1913, in support of the writ, alleged
in substance that at all the times and dates mentioned in the petition the respondent was the
duly elected, qualified, and acting county auditor of said Humboldt County; that ever since
the 30th day of June, 1911, respondent had failed or neglected to either make or join with the
county treasurer in making the joint statements required by said section 3746; that the county
treasurer, during all said times, was and now is ready and willing to make such joint
statements, but was and is unable to do so by reason of the failure and neglect of respondent
to join with him; that by reason of such failure the relators were unable to perform their duties
as required by law.
The petition prayed for the issuance of a writ of mandate directed to respondent, and
requiring him to make and file, jointly with the said county treasurer, all statements and
reports in arrear, within a time to be fixed by the court.
Respondent demurred to the petition upon two grounds: (1) That the petition or affidavit
did not state facts sufficient to constitute a cause of action. (2) That there is a nonjoinder of
parties defendant.
Rev. Laws, sec. 3746, provides: The county auditor and treasurer of each county in the
state shall, on the first Mondays of April, July, October, and January, make a joint statement
to the board of county commissioners, and forward a copy to the state controller, showing the
whole amount of collections (stating particularly the source of each portion of the revenue)
from all sources paid into the county treasury; the funds among which the same was
distributed and the amounts to each; the total amounts of warrants drawn and paid, and
on what funds; the total amounts of warrants drawn and unpaid; the accounts or claims
audited or allowed and unpaid, and the fund out of which they are to be paid, and,
generally, make a full and specific showing of the financial condition of the county, which
shall be published in some newspaper published in the county, if there be one; if not, then
by posting the same in a conspicuous place on the courthouse of said county."
the same was distributed and the amounts to each; the total amounts of warrants drawn and
paid, and on what funds; the total amounts of warrants drawn and unpaid; the accounts or
claims audited or allowed and unpaid, and the fund out of which they are to be paid, and,
generally, make a full and specific showing of the financial condition of the county, which
shall be published in some newspaper published in the county, if there be one; if not, then by
posting the same in a conspicuous place on the courthouse of said county.
Respondent failed to file any brief in this court, and we an only surmise what his position
was in the court below from the record, and from statements contained in appellant's brief.
From these we gather that it was respondent's contention that, as the statute required the fiscal
statements to be made jointly by the treasurer and auditor, the treasurer was a necessary party
to the proceeding, and that, as respondent had entered upon a new term of office on the first
Monday in January, 1913, he could not be required to perform any official duties which he
had failed to perform during his preceding term of office. We think both these contentions are
without merit. If the official duty is a continuing one until performed, a writ will lie against
the incumbent in office, regardless of the fact that his predecessor in office should primarily
have performed the duty. A similar question was presented in the recent case of Stone v. Bell,
Auditor, 35 Nev. 240, 129 Pac. 458, in which we said: The question is one of original
impression in this court, and we see no good reason not to adopt the view that the successor
in office in a case of this character may be substituted in place of the officer whose term has
expired. Here an official duty is sought to be enforced, one which continues until performed,
regardless of who may, for the time being, be the incumbent of the office.
See, also, Utter v. Franklin, 7 Ariz. 300, 64 Pac. 427; Nance v. People, 25 Colo. 252, 54
Pac. 631; Parks v. Hays, 11 Colo. App. 415, 53 Pac. 893; People v. Ahearn, 200 N. Y. 146,
93 N. E. 472; Commonwealth v. Overseers, 4 Kulp.
Kulp. (Pa.) 95; State v. Common Council of Madison, 15 Wis. 30; State v. Gates, 22 Wis.
210.
This is a rule which, doubtless, should have its exceptions; but the present case does not
appear to be one which should be considered outside this rule. Respondent was his own
successor in office. Conceding there may be exceptions to the rule that a successor in office is
bound to perform duties of a continuing character, which his predecessor should have
performed during his term, courts are justified in applying the rule with greater strictness
where the neglect to perform a statutory duty occurred ruling a preceding term of the same
incumbent in office.
In State v. Kirman, 17 Nev. 380, 30 Pac. 1075, in a proceeding in mandamus by the board
of county commissioners of Storey County against Richard Kirman, treasurer of Storey
County, to compel the latter to make a joint statement with the county auditor in accordance
with the provisions of the same section as is involved in this case, this court held, quoting
from the syllabus: Mandamus will not issue to compel a county treasurer to make a
statement, as required by statute, after his term of office had expired. It does not appear from
any statement in the opinion in this case that the respondent, Kirman, was not his own
successor in the office of treasurer. It would be natural to assume from the opinion that he
was, because in the title of the action he is designated Treasurer of Storey County. The
record in the case, however, discloses that he was not his own successor, and was not
treasurer of Storey County, at the time the proceeding was instituted. The court below may
have been misled, from the opinion alone and the way in which the proceeding was entitled,
into the belief that it was a case squarely in point, and decisive of the question presented in
this case, when, upon the contrary, viewed in the light of the record, it is clearly
distinguishable. Neither should that case be regarded as holding that, in every case where an
officer has ceased to hold an office, he may not be compelled by mandamus to perform
some duty which, from its very nature, is personal to the incumbent, as distinguished
from a duty that is purely official, and continuing until performed.
mandamus to perform some duty which, from its very nature, is personal to the incumbent, as
distinguished from a duty that is purely official, and continuing until performed. (Finley v.
Territory, 12 Okl. 621, 73 Pac. 273; State v. Cole, 25 Neb. 342, 41 N. W. 245.)
[2] We think it does not appear from the petition that the county treasurer was a necessary
party to the proceeding. It is alleged in the petition that the treasurer was at all times and is
now ready and willing to join in making the required reports. The demurrer to the petition
admits this fact. We see no necessity of making an officer, willing to perform his part in
making a joint official report, a party to an action against another officer whose duty it is to
join with him in making such report, and who is alleged to be delinquent.
The judgment of dismissal and the order sustaining the demurrer are reversed, and the case
remanded.
____________
37 Nev. 49, 49 (1914) Leete v. Southern Pacific Co.
[No. 2066]
B. F. LEETE, and ISABEL M. LEETE (His Wife), WILLIAM M. LEETE, BEN M. LEETE,
and MATT LEETE, Respondents, v. SOUTHERN PACIFIC COMPANY (A
Corporation), Appellant.
[139 Pac. 29]
1. Appeal and ErrorReviewVerdict.
This court will not disturb a verdict if there is any substantial evidence to support it, especially where
a motion for nonsuit has been overruled and a motion for a new trial has been denied.
2. TrialArgumentAction of Court.
Counsel's improper criticism of defendant by statements outside of the evidence, in view of the court's
direction to disregard them and of the refusal to grant a new trial after verdict for plaintiff, held not to
warrant a remand for a new trial.
Appeal from the Second Judicial District Court, Washoe County; John S. Orr, Judge.
Action by B. F. Leete and others against the Southern Pacific Company, a corporation.
Judgment for plaintiffs, and defendants appeals. Affirmed.
Cheney, Downer, Price & Hawkins, for Appellant.
Mack, Green & Heer, for Respondents.
On the 29th day of June, 1910, the defendant brought a suit in the district court of
Churchill County against the Eagle Salt Works Railroad Company, a Nevada corporation
doing business in Lyon and Churchill Counties, to recover $30,245.43 and costs of suit upon
a note mortgage dated the 26th day of December, 1903, executed by Eagle Salt Works
Railroad Company to defendant. During the time mentioned the plaintiffs were owners of all
the capital stock and were directors of the Eagle Salt Works Railroad Company. While that
action was pending, and on or about the 11th day of October, 1910, the plaintiffs and
defendant herein and Eagle Salt Works Railroad Company entered into the following:
Memorandum of Agreement. Eagle Salt Works stockholders will execute to the Southern
Pacific Company bills of sale of the stock that the Southern Pacific Company holds as
collateral security.
will execute to the Southern Pacific Company bills of sale of the stock that the Southern
Pacific Company holds as collateral security. Will cancel that stock on the books of the
company and issue the entire capital stock of Eagle Salt Works to the Southern Pacific
Company. Present officers will resign and put the succeeding officers or the Southern Pacific
Company, in possession of the Eagle Salt Works. Present owners step out and succeeding
owners step in without interruption of business. The competent authorities of the Eagle Salt
Works Railroad Company will issue the capital stock of the Eagle Salt Works Railroad
Company to the Southern Pacific Company, resign and turn over the property of the Eagle
Salt Works Railroad Company to the succeeding owners. Present owners step out and
succeeding owners step in without business interruption. It is agreed that the present owners
will collect all outstanding accounts and close out stock in Reno and Beckwith agencies, also
pay current bills to the day that the present owners turn the property over to their successors.
Also that the present owners will pay the August pay roll, the Southern Pacific Company to
dismiss all suits against the Eagle Salt Works and against the Eagle Salt Works Railroad
Company at its own expense and charge. Mack & Green, Attorneys for Eagle Salt Works and
Eagle Salt Works Railroad Company. Chas. R. Lewers, Attorney for S. P. Co. Oct. 11th,
1910.
Under this agreement, on the 18th day of October, 1910, the defendant took over from
plaintiffs and became the owner of all the capital stock of the Eagle Salt Works Railroad
Company, and took possession of the property and affairs of that company.
In the amended complaint it is alleged that by virtue of this agreement the plaintiffs
became the owners of and entitled to collect all outstanding accounts then due the Eagle Salt
Works Railroad Company, and that the plaintiffs paid all the current bills and August pay-roll
of the Eagle Salt Works Railroad Company, as provided by the agreement. It is further
alleged that between the 3d day of March, 1906, and the 1Sth day of October, 1910, the
Eagle Salt Works Railroad Company was carrying on the business of a railroad,
transporting and hauling goods between Leete and Luva, a station on the line of
defendant, a distance of 14 miles, and that during those times the defendant was
engaged in the business of a railroad company, transporting and hauling wares and
merchandise through the State of Nevada and other states; that prior to the 3d day of
March, 1906, the Eagle Salt Works Railroad Company and the defendant entered into an
agreement to transport and haul goods and merchandise over the respective railroads,
and providing that defendant was to retain part of the charges for its services in hauling,
and was to pay to the Eagle Salt Works Railroad Company its share for the transportation
of merchandise; that between the 3d day of March, 1906, and the 1Sth day of October,
1910, the defendant collected for hauling merchandise over the railroads of the two
companies $11,95S.62, of which sum the amount of $3,724.53 became due from the
defendant to Eagle Salt Works Railroad Company as its proportion on freight or charges
so earned, no part of which has been paid by the defendant, and that the same was due to
the Eagle Salt Works Railroad Company at the time of the making of the aforesaid
contract, and by reason of that contract became, upon the 1Sth day of October, 1910, and
is now, due and owing from the defendant to the plaintiffs, with interest.
3d day of March, 1906, and the 18th day of October, 1910, the Eagle Salt Works Railroad
Company was carrying on the business of a railroad, transporting and hauling goods between
Leete and Luva, a station on the line of defendant, a distance of 14 miles, and that during
those times the defendant was engaged in the business of a railroad company, transporting
and hauling wares and merchandise through the State of Nevada and other states; that prior to
the 3d day of March, 1906, the Eagle Salt Works Railroad Company and the defendant
entered into an agreement to transport and haul goods and merchandise over the respective
railroads, and providing that defendant was to retain part of the charges for its services in
hauling, and was to pay to the Eagle Salt Works Railroad Company its share for the
transportation of merchandise; that between the 3d day of March, 1906, and the 18th day of
October, 1910, the defendant collected for hauling merchandise over the railroads of the two
companies $11,958.62, of which sum the amount of $3,724.53 became due from the
defendant to Eagle Salt Works Railroad Company as its proportion on freight or charges so
earned, no part of which has been paid by the defendant, and that the same was due to the
Eagle Salt Works Railroad Company at the time of the making of the aforesaid contract, and
by reason of that contract became, upon the 18th day of October, 1910, and is now, due and
owing from the defendant to the plaintiffs, with interest.
In the answer it is alleged that the defendant has fully complied with the terms of the
agreement before mentioned, and it is denied that by virtue of the agreement, or otherwise,
the plaintiffs became the owners of and entitled to collect the outstanding accounts due the
Eagle Salt Works Railroad Company, or that the plaintiffs paid the current bills of that
company, as provided in the agreement, or that the sum of $3,724.83 became due from the
defendant to the Eagle Salt Works Railroad Company as its portion of freight charges, or
otherwise. It is alleged that there was credited to the Eagle Salt Works Railroad Company by
the defendant as its division of freight earnings the sum of $3,S25.71; that prior to the 1st
day of October, 1906, it paid to that company on account of that credit $336.42; that after
that time, by agreement, the defendant applied all of the credits on the division of freight
earnings toward the cancellation of the indebtedness of the Eagle Salt Works Railroad
Company to the defendant.
division of freight earnings the sum of $3,825.71; that prior to the 1st day of October, 1906, it
paid to that company on account of that credit $336.42; that after that time, by agreement, the
defendant applied all of the credits on the division of freight earnings toward the cancellation
of the indebtedness of the Eagle Salt Works Railroad Company to the defendant.
Not only has the defendant denied all indebtedness, but by way of defense the answer
details items relating to interline freight charges collected and regarding the cost of building
of Eagle Salt Works Railroad.
The jury rendered a verdict in favor of the plaintiffs for $1,700. Two learned judges gave
the case careful consideration. One overruled a motion for a nonsuit, and his successor denied
the motion for anew trial.
There is much evidence regarding statements and understandings in relation to the
agreement of October 11, 1910, above quoted, and regarding the transactions and accounts
between the defendant and the Eagle Salt Works Railroad Company. The agreement as
quoted makes no specific reference to the demand set up in the complaint. The statement that
it is agreed that the present owners will collect all outstanding accounts, * * * also pay
current bills to the day that the present owners turn the property over to their successors,
cannot be construed as providing that any amounts remaining due the Eagle Salt Works
Railroad Company on account for interline freight charges were relinquished by that company
to the defendant. It is unnecessary to make any extended review of the hundreds of pages of
evidence, which is not without conflict, at least concerning certain statements affecting the
transactions involved and regarding the understanding of the parties or agents. The testimony
does not show specifically that these charges were to be relinquished, and the testimony is not
in harmony as to whether, in a general way, all demands which would include these charges
were to be canceled.
After an examination of the record, we feel justified in adopting the following portion of
the opinion of the district court in overruling the motion for a new trial: "Some of the
testimony as to what was said by Mr.
adopting the following portion of the opinion of the district court in overruling the motion for
a new trial: Some of the testimony as to what was said by Mr. Lewers is capable of being so
construed that it would cover outstanding accounts against the Southern Pacific Company and
therefore work an estoppel; but the testimony of other witnesses, particularly that of Mr.
Stewart, is capable of no such construction, and, taken in connection with the letters above
referred to, I am of the opinion that the jury was justified in finding that no estoppel existed,
particularly as the language favoring the defendant's view might be considered as explanatory
of, or relating to, what was undoubtedly the principal point sought to be brought out by Mr.
Lewers in his letters and in his demand of Mr. Leete, namely: Whether there were outstanding
notes, merchandise accounts, or other indebtedness, or tort claims against the Eagle Salt
Works or Eagle Salt Works Railroad Company, for which the Southern Pacific Company by
taking over this stock, might become liable directly or indirectly. I am further of the opinion
that the jury was justified in finding, as it must have done, the language of the protocol
outstanding accounts' was sufficiently broad to include the claims of the plaintiffs for
interline freight shipments and that this language was sufficient to take these accounts out of
the settlement effected by the dismissal of the suits pursuant to the agreement.
[1] As often held, this court will not disturb the verdict if there is any substantial evidence
to support it. The overruling of the motion for nonsuit and the denial of the motion for the
new trial by the district court, which was empowered to grant a new trial if the evidence was
insufficient, strengthens the verdict.
[2] Exception was taken to criticisms of the defendant made by counsel. The statements in
this connection were outside of the evidence, were unwarranted and improper. However, as
the jury was directed to disregard them and find a verdict only in accordance with the
evidence, and in view of the refusal of the court to grant a new trial, and of all that is
disclosed by the record, they are not considered as warranting the remanding of the case
for a new trial.
the evidence, and in view of the refusal of the court to grant a new trial, and of all that is
disclosed by the record, they are not considered as warranting the remanding of the case for a
new trial.
The foregoing are the objections most seriously urged in this court. Many other exceptions
were taken, but we do not find any reversible error disclosed by the record.
The judgment and order of the district court are affirmed.
On Petition for Rehearing
Per Curiam:
Petition for a rehearing denied.
Norcross, J.: I dissent.
____________
37 Nev. 55, 55 (1914) In Re Wildes
[Nos. 2073 and 2074]
STATE OF NEVADA, Ex Rel. JOHN SPARKS, Et Al., as the State Banking Board,
Plaintiff, v. STATE BANK AND TRUST COMPANY (a Corporation), Defendant.
In the Matter of Orders Fixing the Compensation of F. L. WILDES, Receiver, and the
Compensation of the Attorneys for the Receiver.
STATE OF NEVADA, Ex Rel. JOHN SPARKS, Et Al., as the State Banking Board,
Appellant, v. F. L. WILDES, as Receiver, Respondent.
[139 Pac. 505, and 142 Pac. 627]
Opinion of Talbot, C. J.
1. ReceiversCompensationNotice of Motion.
A party or person interested in an action wherein a receiver is appointed must be served, as provided
by statute, with notice of a motion to fix his compensation, or the order is made ex parte.
2. MotionsNoticeEx Parte Order.
If the statute does not provide for notice of a motion by publication, it would not be any notice, and
the order made thereon would be ex parte.
3. Banks and BankingAct of 1907Compensation of ReceiverNotice to
Attorney-General.
At the time orders fixing the compensation of the receiver, appointed under the provisions of the
banking act of 1907 (Stats. 1907, p. 229) were made, there was no statute authorizing the
attorney-general to oppose them, nor providing that he should be served with notice of motions to fix
such compensation.
Norcross, J., concurring.
4. Banks and BankingAct of 1913Compensation of ReceiverAuthority of
Attorney-General.
Since the passage of the act of 1913 (Stats. 1913, c. 204) the attorney-general is authorized to appear
in the State Bank and Trust Company receivership case, in the name of the state, on behalf of the
creditors.
5. Banks and BankingRegulations of Business.
The banking business is so essential to the public welfare that laws may be passed for its regulation.
6. Banks and BankingRegulation by StatePolice Power.
Under the police power the state may control the banking business and protect the depositors after a
bank's failure, and may authorize the attorney-general or other officer to do so, and so from the passage
of the act of March 2, 1913 (Stats. 1913, c.
37 Nev. 55, 56 (1914) In Re Wildes
c. 204), authorizing the attorney-general to proceed as he may deem necessary in relation to the affairs or
receivership of the State Bank and Trust Company, he could intervene in an action by the state to wind up
its affairs, either to protect depositors or for the benefit of the state.
7. Banks and BankingReceiversFixing Compensation.
Though, when orders were made fixing compensation of the receiver of the State Bank and Trust
Company in an action by the state to wind up its affairs, the attorney-general was not authorized to appear
therein, he became authorized by the act of March 2, 1913 (Stats. 1913, c. 204), allowing him to proceed
as he might deem necessary in such action, and could move to set the orders aside because made ex parte,
where the services of the receiver had not been terminated or his accounts closed.
8. MotionsNotice by Publication.
Publication of notice of a motion for ten days is not a service, and could not cut off or affect the rights
of any party in interest unless such publication is authorized by statute.
9. ProcessConstructive ServiceCompliance with Statute.
There must be strict compliance with the statutes as to constructive service, which, under our practice,
apply to both law and equity cases.
10. Banks and BankingReceiversFixing CompensationMotionNotice by
Publication.
With no law authorizing notice by publication, and applying Rev. Laws, secs. 5367-5370, providing
only for service of notice by personal delivery, by leaving a copy, and by mail and telegraph in certain
cases, publication of notice of motions to fix compensation of the receiver of the State Bank and Trust
Company did not cut off rights of the state or depositors or parties in interest from a hearing or assertion
of their rights, or from proceeding to vacate the orders, by showing the allowance or claim to be
excessive.
11. Banks and BankingReceiversFixing CompensationSetting Aside OrdersPowers
of State.
If orders fixing compensation of the receiver of the State Bank and Trust Company, in an action by
the state to wind up its affairs, were made after notice, they could be regarded as final and subject to
attack only by appeal, but, if made without the personal service required by law, the state, under its police
power to supervise the banking business, acting by the attorney-general pursuant to the act of March 2,
1913 (Stats. 1913, c. 204), providing for his intervention, and within the time prescribed by district court
rule 45, could move to set them aside pursuant to Rev. Laws, sec. 5084, for want of proper notice, and
could appeal from an adverse decision, for the purpose of reducing excessive compensation allowed.
12. Appeal and ErrorReviewInsufficient Record.
Where a receiver's accounts are not made part of the record on appeal from an order refusing to set
aside an order fixing his compensation, it is not shown on such appeal that the petition
for compensation misled the court by misstating his accounts, so that a mistake in
its action appeared as a matter of record below.
37 Nev. 55, 57 (1914) In Re Wildes
his compensation, it is not shown on such appeal that the petition for compensation misled the court by
misstating his accounts, so that a mistake in its action appeared as a matter of record below.
Norcross, J., dissenting.
Opinion of McCarran, J.
1. Banks and BankingAct of 1907Compensation of ReceiverNotice to State.
The receivership, being the essence of the judgment entered in pursuance of the statute of 1907 (Stats.
1907, c. 119) at the instance of the state as the party plaintiff, the state was interested in orders affecting
the compensation of the receiver, by reason of the police powers exercised in furtherance of public
welfare, and was entitled to notice, as a party in interest, of any motions, subsequent to the final order
creating the receivership, to fix the compensation of the receiver, for the reason that the same affected the
force of the original judgment creating the receivership.
1. ActionProcessServicePublicationChancery Proceedings.
Civil Practice Act (Rev. Laws, sec. 4943) section 1, providing that there shall be in the state but one
form of civil action for the enforcement or protection of private rights, renders the practice act applicable
to chancery proceedings, so that process may be served by publication only in such cases as is authorized
by statute; the court having no jurisdiction in other cases to order such service.
2. MotionsProcessVacation of OrdersServiceStatutesCourt Rules.
Civil Practice Act (Rev. Laws, sec. 5367) section 425, providing that written notices and other papers,
when required to be served on a party or his attorney, shall be served in the manner prescribed in the next
three sections, when not otherwise provided, and district court rule 10, relating to service of notice, and
rule 45, providing that motions to vacate orders may be made within six months on notice to the adverse
party, are applicable to chancery proceedings.
3. ReceiversCompensationAllowanceNotice.
The act of 1913 (Stats. 1913, c. 204) authorized the attorney-general to institute an investigation of all
the affairs of a certain bank and trust company and of the receivership thereof, and to take necessary legal
proceedings in any action then pending in any court affecting the affairs of the receivership of the bank,
etc. Held that, where orders were entered in the receivership proceeding prior to the passage of such act
allowing compensation to the receiver and his attorneys without notice served on the
attorney-general otherwise than by publiction, such orders were ex parte as to him,
and he was authorized by the act to appear on behalf of the state and contest their
validity.
37 Nev. 55, 58 (1914) In Re Wildes
notice served on the attorney-general otherwise than by publiction, such orders were ex parte as to him,
and he was authorized by the act to appear on behalf of the state and contest their validity.
Appeal from the First Judicial District Court, Ormsby County; Frank P. Langan, Judge.
Action by the State, on the relation of John Sparks and others, as the Board of Bank
Commissioners, against the State Bank and Trust Company. From an order refusing to set
aside an order fixing the compensation of F. L. Wildes, as receiver of defendant, and from an
order allowing him attorney's fees, plaintiff appeals. Reversed. Rehearing denied.
Geo. B. Thatcher, Attorney-General, and William Forman, for Appellant.
Mack, Green & Heer, for Respondent.
In this action, which was brought by the board of bank commissioners, the receiver was
appointed on May 18, 1908, to wind up the affairs of the State Bank and Trust Company,
which had been declared an insolvent and unsafe institution. An order was entered on the 8th
day of November, 1912, fixing the receiver's attorneys' fees for services rendered to October,
1912, and an order was entered on the 7th day of March, 1913, allowing the compensation of
the receiver up to the first day of August, 1912. On May 8, 1913, the attorney-general, acting
for the state as plaintiff, served notice on the defendants, the receiver and his attorneys, that
on the 20th day of May he would move to set aside these two orders. This appeal is taken
from the orders entered, after hearing, on the 7th day of June, 1913, denying these motions to
vacate.
Of the twelve specifications in the motion to annul the order fixing the compensation of
the receiver, only the first and the third need be considered, and only the first one has been
urged in this court as a ground for reversal.
37 Nev. 55, 59 (1914) In Re Wildes
one has been urged in this court as a ground for reversal. They are:
I. That no notice of the presentation of the petition or notice of motion for order fixing the
compensation of the receiver was ever given or served upon the plaintiff herein or upon the
attorney-general of the State of Nevada, nor was there any appearance therein on behalf of the
plaintiff herein, the State of Nevada.
III. That the court, upon the hearing of said petition for an order fixing the compensation
of said receiver and upon the evidence adduced thereat, found as a matter of fact that the
income from the real estate of the bank has practically paid all of the expenses of the
receivership. When this real estate came into the hands of the receiver, including the Tonopah
and Goldfield banks buildings, it was largely vacant and untenanted. With careful attention
and effort these buildings have been filled with paying tenants, and have been made not only
self-sustaining, but show a profit equal to, if not greater than, the expenses of the
receivership,' when in truth and in fact it is shown on the report of the receiver on file herein
that the gross income from all the real estate up to February 18, 1913, is and was $93,452.45,
and that the maintenance and expense paid out on behalf of said real estate is and was
$62,056.05, exclusive of taxes, leaving a net income from all of said real estate the sum of
$31,396.40, from which said net income the taxes paid on said real estate should be deducted,
said reports showing that the sum of $12,574.56 has been paid for taxes, but not showing
what amount was paid upon the real estate. Whereas it is shown and appears from the report
of the receiver on file herein that the total expense of the receivership, exclusive of the
expense chargeable to maintenance and expense on real estate, is and was the sum of
$145,049.81, leaving a balance of expense of said receivership over and above the net income
from said real estate the sum of $114,053.21, and being nearly four times the net amount of
the income from said real estate.
The respondent, receiver, has moved to dismiss the appeals upon the ground that the
appellant is not an aggrieved or adverse party and has no appealable interest, and upon
the ground that they will not lie from an order refusing to set aside another order, and
that they can be reviewed only upon direct appeal from the original order.
37 Nev. 55, 60 (1914) In Re Wildes
appeals upon the ground that the appellant is not an aggrieved or adverse party and has no
appealable interest, and upon the ground that they will not lie from an order refusing to set
aside another order, and that they can be reviewed only upon direct appeal from the original
order.
The point which the attorney-general and associate counsel for the state have urged in this
court as a ground for the reversal of the order refusing to vacate the order fixing the
compensation of the receiver and the order fixing the compensation of the attorneys for the
receiver is that no notice of the motions to fix these compensations was served upon the
attorney-general prior to the order of the court fixing them. Was the state, or the
attorney-general as its legal representative, entitled to notice of the application to have these
compensations fixed; and, if so, was there such notice by personal service or publication as
the statute requires? Should the orders be set aside because such notice was not given?
[1] If it be conceded that, as urged on behalf of the receiver, the state, or the plaintiffs in
the action, were not entitled to notice of the motion to fix the compensation of the receiver, it
must be admitted that some one who is a party to or interested in the action would have to be
served, as provided by the statute, with notice of the motion to fix the compensation, or that,
if such service of notice was not made, the order was made ex parte.
[2] Notice by publication, not provided for by the statutes, whether the parties or their
attorneys are in the state or not, would not be any notice, and consequently the order made
upon such notice would be an ex parte order.
[3] The receiver was appointed under the banking act of 1907, which authorized the
attorney-general, at the request of the state bank commissioner, to institute an action in the
name of the state against any insolvent or unsafe bank, and to have a receiver appointed for
the purpose of liquidation.
37 Nev. 55, 61 (1914) In Re Wildes
purpose of liquidation. At the time the orders fixing the compensation were made, there was
no statute authorizing the attorney-general to oppose them, nor providing that he should be
served with notice of these motions. The statute at and prior to that time provided that the
banking board and attorney-general could bring suit and have insolvent banks placed in the
hands of a receiver, who is an arm of the court, and should close the affairs of the institution,
but at that time the attorney-general was not authorized to follow, on behalf of the
stockholders or the state, the settlement of the bank's affairs.
[4] Under the act of the legislature of March 24, 1913 (Stats. 1913, c. 204), the
attorney-general is authorized and empowered to take such proceedings as he may deem
necessary in any action now pending in any court affecting in any way the affairs of the
receivership of the said State Bank and Trust Company; also to institute, maintain, and
prosecute any action or actions, suit or suits, which he may deem necessary, either civil or
criminal, in the name of any proper party plaintiff, or in the name of the State of Nevada,
against any party, person, officer or corporation, the subject-matter of which action or actions
shall in any manner affect, pertain to or be connected with the affairs of said State Bank and
Trust Company or of the receivership thereof. Prior to the passage of this statute, that officer
was not authorized to appear in such actions after the appointment of the receiver. Since its
passage he is authorized to appear, in the name of the state, on behalf of the creditors, if the
act of the legislature is constitutional and within the police powers of the state.
[5] As often held by this and other courts, the banking business is so essential to the public
welfare that laws may be passed for its regulation. Decisions holding that the state has no
interest or power to appear after the appointment of a receiver in actions pending for the
liquidation of insolvent banks were made in cases where there was no statutory provision
similar to the one passed at the last session of the legislature authorizing the
attorney-general to appear in the action after the appointment of a receiver, and in cases
decided before the decisions of the Supreme Court of the United States upholding the
bank guaranty laws in Oklahoma, Kansas, and Nebraska.
37 Nev. 55, 62 (1914) In Re Wildes
there was no statutory provision similar to the one passed at the last session of the legislature
authorizing the attorney-general to appear in the action after the appointment of a receiver,
and in cases decided before the decisions of the Supreme Court of the United States
upholding the bank guaranty laws in Oklahoma, Kansas, and Nebraska. (Noble State Bank v.
Haskell, 219 U. S. 112, 31 Sup. Ct. 186, 55 L. Ed. 112, 32 L. R. A. n. s. 1062, Ann. Cas.
1912a, 487; Shallenberger v. First State Bank, 219 U. S. 116, 31 Sup. Ct. 189, 55 L. Ed. 117;
Assaria State Bank v. Dolley, 219 U. S. 122, 31 Sup. Ct. 189, 55 L. Ed. 123.) In these
decisions, overruling earlier ones of some of the intermediate federal and state courts, the
Supreme Court of the United States held that the laws requiring all state banking institutions
to contribute to a fund to be handled by a commission or under state authority, and to be
applied to the payment of the claims of depositors in insolvent banks, were constitutional.
[6] The sustaining of these laws was in effect a holding that the state, under the police
power, may continue to protect the depositors even after the bank has failed, instead of
leaving him to hire his own attorneys and to be required to pursue his own methods to protect
his interest. It being settled by the Supreme Court of the United States that the state may do
this, it follows that the state has control of the banking business under the police power, and
that it may authorize its attorney-general or other officer to protect the interests of depositors
in defunct banks; and consequently, from the time of the passage of the act of March 24,
1913, the attorney-general was authorized, under the broad powers given him by that statute,
to intervene or proceed in the action, whether it be considered for the protection of the
depositors or for the benefit of the state.
[7] Although the state had given him no authority to so appear at the time the orders fixing
the compensations were made, he became authorized, under the general terms of this statute,
to move to vacate these orders because they had been made ex parte and the service of the
receiver had not been terminated or his accounts closed.
37 Nev. 55, 63 (1914) In Re Wildes
the receiver had not been terminated or his accounts closed.
The powers of the attorney-general may be likened in principle to the authority conferred
upon a stockholder who directs his attorney to bring a suit and have the affairs of a private
corporation thrown into the hands of a receiver, and did not at first authorize the attorney to
proceed further, but who later, and after the compensation of the receiver had been fixed,
authorized the attorney to take some proceeding to reduce the amount of compensation
allowed the receiver. The litigant, as well as the state in this case, would be a party to and be
interested in the proceeding all the time, but, during the period intervening between the
appointment of the receiver and the fixing of the compensation, the attorney would not be
authorized to act for the litigant.
In the opinion overruling the motion to vacate, it is said: I cannot take the position that no
notice of the hearing of the petition to fix receiver's and attorney fees was necessary. Nor do I
adhere to the statement of counsel that when the court declared the State Bank and Trust
Company as a bank unsafe to continue business and issued an injunction preventing it from
carrying on any further business, the state and its attorney-general had no longer anything to
do with the liquidation of the bank and had no interest therein. I am of the opinion, however,
when the final judgment placing the bank in liquidation and appointing a receiver was made,
that the state no longer had such an interest in the proceedings of liquidation as would entitle
it or its attorney-general to personal and written notice of all or any proceedings taking place
in the course of the liquidation. It is conceded by Mr. Thatcher, the attorney-general, and Mr.
Forman, representing the state, that notice by publication of the hearing of both petitions in
the Carson City News was had, and that such notices were ordered by the court to be
published. By said notices the times and places of the hearings of the petitions were fixed and
all persons interested therein directed to appear and make their objections, if any they had,
to the granting of the petitions.
37 Nev. 55, 64 (1914) In Re Wildes
objections, if any they had, to the granting of the petitions. On the hearings, of which the
state, in my judgment, had due notice, the state was not representeddid not appearand in
my opinion is not in a position to complain of want of notice.
From this it is apparent that the learned district judge, proceeding with the utmost good
faith, regarded the published notice as effective.
[8] But the publication for ten days in the newspaper of notice of motion to fix
compensation is not a service and could not cut off or affect the right of any party in interest
unless such publication was authorized by statute. If each judge could legislate or determine
regarding the kind of notice required, one judge might deem ten days, another thirty days, or
another one day, sufficient publication, and litigants who are not served personally, or in
some other method provided by statute, of which they are required to take notice, might be
deprived of their rights unawares. The decisions are uniform holding that there must be a
strict compliance with statutory provisions relating to constructive service. Under our practice
these apply to both law and equity cases.
[9] The fact that it may be difficult to serve over 4,000 depositors except by a single
publication cannot alter the law or avoid the necessity of service in accordance with the
statute, any more than in a case where the defendants are so very numerous and it would be
attempted to serve them by publication of summons when this statute does not warrant such
service on parties residing within the state. Relief from such a situation might be sought only
under the code provision that, where the parties are numerous, one or more may sue or defend
for all. There are many cases relating to the settlement of estates of deceased persons, and to
other matters, in which provision is made for service of notice by publication.
[10] With no statute authorizing notice by publication regarding the fixing of the
compensation of a receiver, and applying the general provisions of the practice act relating to
service of notice, it is found that they provide only for service by personal delivery, by
leaving a copy, and by mail and telegraph in certain cases.
37 Nev. 55, 65 (1914) In Re Wildes
only for service by personal delivery, by leaving a copy, and by mail and telegraph in certain
cases. (Rev. Laws, secs. 5367-5370.) Hence the publication did not cut off the rights of or
prevent the state or depositors or parties in interest from having a hearing and asserting their
rights, or from instituting proceedings to have the orders fixing compensation vacated, so that
they might have an opportunity to appear, present evidence, and show that the compensation
allowed or claimed was excessive.
[11] If there had been a law directing notice by publication, and notice had been published
in accordance therewith, it would then become more important to consider whether the state,
or any party to the action, might proceed to have the order fixing compensation vacated under
section 5084 of the Revised Laws, which provides that, when there has not been personal
service upon the defendant, the court may allow him or his legal representative, on such terms
as may be just, at any time within six months after the rendition of any judgment, to answer to
the merits, or under district court rule 45, which provides:
No judgment, order, or other judicial act or proceeding, shall be vacated, amended,
modified, or corrected by the court or judge rendering, making, or ordering the same, unless
the party desiring such vacation, amendment, modification, or correction shall give notice to
the adverse party of a motion therefor, within six months after such judgment was rendered,
order made, or action or proceeding taken.
Under the decisions, this rule relating to a matter of practice has the force of a statute. The
motions to vacate were made within six months from the time of the fixing of the
compensations.
From final orders made upon proper service there may be no relief obtainable except by
appearance and answer or by appeal, but statutory and court rule provisions for vacating ex
parte orders, made without notice and for setting aside default judgments, from which there is
no appeal, are fair and equitable, because they allow the party aggrieved to defend.
37 Nev. 55, 66 (1914) In Re Wildes
party aggrieved to defend. He should not be deprived of the opportunity to appear and defend
and to appeal. If the orders fixing compensation had been made after proper notice, they
could be regarded as final and subject to attack only by appeal, unless possibly upon a
showing of inadvertence and merits.
The case is different from the ordinary one in which only individual litigants are concerned
over some matter of private interest, not only because it comes under the police power of the
state, which may supervise the banking business because so essential to the public welfare,
and legislate for the protection of depositors before and after the bank has failed, not only that
the public generally may have more confidence in dealing with and in placing their money in
banking institutions because they may have assurance of protection against bank failures, and
of being further protected if the bank does fail, but because the receiver in this case,
appointed to serve the creditors or stockholders of the defunct institution, to act on their
behalf, at their expense, is an arm of the court which, as well as this tribunal under its
supervisory power, is duty bound to safeguard the rights of all who seek justice at its portals.
Consequently the efforts of the attorney-general, in accordance with the statute, to reduce any
excessive compensation allowed, are not inhibited by the constitution.
[12] Regarding the third ground specified in the notice of motion to set aside the orders
fixing the compensations, whether the accounts of the receiver or the petition asking to have
the compensation fixed showed misstatements which would support these assertions and
show on the record that the court had been misled, and by mistake had stated that the amounts
derived and handled by the receiver were largely in excess of the amounts actually received
by him from the income from real estate, so that it would appear as a matter of record that a
mistake had been made in fixing the compensation, which should be corrected upon motion
or by the court on its own volition, so that any party in interest moving to have it corrected
could appeal from an order refusing to vacate the order fixing the compensation, because,
as generally held, mistakes apparent in the record should be corrected with or without
motion, is not shown, because the accounts are not made a part of the record on appeal.
37 Nev. 55, 67 (1914) In Re Wildes
so that any party in interest moving to have it corrected could appeal from an order refusing
to vacate the order fixing the compensation, because, as generally held, mistakes apparent in
the record should be corrected with or without motion, is not shown, because the accounts are
not made a part of the record on appeal.
The orders of the district court are reversed.
McCarran, J., concurring:
I concur in the judgment. The judgment entered by the court below, in the first instance,
appointing a receiver was a final judgment entered on behalf of the state and in favor of the
state in an action in which the state was plaintiff. (State v. Wildes, 34 Nev. 94, 116 Pac. 595.)
The receiver was the creature of the judgment. In fact, the receivership was the judgment
itself. The state, through the exercise of its police power, had the right, and it was its duty, to
have this judgment entered pursuant to the statute of 1907 (Stats. 1907, c. 119) and to have
this receivership created.
The receivership, being the very essence of the judgment, and being that which was sought
for by the state, acting in pursuance of its legislative declaration, was the thing in which the
state was most vitally interested, not pecuniarily, but rather by reason of its police powers,
exercised in furtherance of public welfare, and especially that great phase of public welfare
having to do with the commercial life and banking business incident thereto.
Any motion made in the district court subsequent to the final order creating the
receivership, the effect of which would be to destroy or discharge the receivership, would be
one in which the state, as plaintiff in the action, would be entitled to notice, because the
object of the statute, in the first instance, and the object of the litigation in so far as the state
was concerned, was primarily to prevent the insolvent institution from further proceeding to
conduct an unsafe business, where the public might be the victim; and, secondly to see that
the affairs of the institution were wound up equitably to the end that its creditors might
receive just compensation so far as the assets of the institution would go.
37 Nev. 55, 68 (1914) In Re Wildes
of the institution were wound up equitably to the end that its creditors might receive just
compensation so far as the assets of the institution would go.
Let us assume that the court, in this case, had refused to grant any compensation to the
receiver and thereby made it possible that no receiver would act. Would not the state be
interested in seeing that such an order was modified to the extent that the object of the
litigation might be carried out and a liquidation accomplished? The matter of fixing the
receiver's compensation being a matter so incident and vital to the order creating the
receivership, and the state, being vitally interested in the one, must of necessity be equally
interested in the other. The order appointing the receiver, as well as the order fixing his
compensation, are matters which go directly to the primary object of the statute itself, namely,
the protection of the depositing public, and especially the depositors of an insolvent banking
institution. As already stated, the state was not interested from the standpoint of being a
depositor or creditor of the insolvent institution, but its sole interest grew out of its police
power set in operation by the enactment of 1907.
The right of the state to exercise control and supervision in matters of this character
cannot, in the light of modern thought and reasoning, be questioned. When the legislature,
speaking for the policy of the state, enacts laws which tend to protect the people in general, or
great numbers of the people, when it seeks to enhance public welfare by enacting laws
tending to safeguard and promote business and commercial conditions, the ultimate aim and
object of such laws should not be lost sight of. Enacted and maintained by reason of the
police powers of the state, such laws should be operated and construed to the end that their
spirit might be applied, even though in letter they may appear limited or defective.
The order fixing the receiver's compensation, like any other order affecting the force of the
original judgment creating the receivership, was one in which the state, the party plaintiff in
the original action, was interested and being a party interested, and being the very party
at whose instance and motion the receivership was established, was entitled to notice.
37 Nev. 55, 69 (1914) In Re Wildes
the party plaintiff in the original action, was interested and being a party interested, and being
the very party at whose instance and motion the receivership was established, was entitled to
notice. Moreover, it was entitled to actual notice by proper service. (Pratt v. Rice, 7 Nev. 123;
Daniels Chancery Pl. & Pr. 6th Am. ed. sec. 1591.)
The order fixing the receiver's compensation being one made on motion without notice to
the state, the party interested in the final judgment, was void, and the state having moved
within time to set aside the order, its motion should have been granted.
Norcross, J., dissenting:
I am unable to concur in the opinion and judgment of my associates in this case.
The prevailing opinion is based on the provisions of the act of the legislature of 1913.
Upon the oral argument in this case, the attorney-general specifically disclaimed any authority
under that act, and the act is not even referred to in the brief. While I think the
attorney-general was clearly correct in his views that the state or the attorney-general derived
no rights from the act of 1913, in so far as the orders under consideration are concerned,
nevertheless respondent is entitled to be heard upon this question before it is made the basis
of the court's decision, especially when the prevailing opinion holds against the contention
upon which the attorney-general rested the case upon appeal. The act of 1913 does not in any
of its provisions, as held in the prevailing opinion, authorize the attorney-general to intervene
on behalf of the creditors. Whatever rights the attorney-general has under that act is as the
representative of the state.
The prevailing opinion also holds that the notice to creditors was insufficient and void and,
hence, that the orders in question were merely ex parte orders. No question was or could be
raised on the appeal as to the sufficiency of the notice to creditors and stockholders, but it was
virtually admitted that the notice as to them was sufficient.
37 Nev. 55, 70 (1914) In Re Wildes
was sufficient. Similar notices were admitted to be sufficient in the Esmeralda County cases
recently decided. No person other than a creditor or a stockholder could question the
sufficiency of the published notice as affecting their rights. In the absence of the sufficiency
of these notices being so questioned, it is without the province of this court to consider the
same. This is in accordance with an established rule that has no exception that I am aware of.
The attorney-general could question the sufficiency of the published notices as giving legal
notice to the state, if the state had an interest in the matter as contended, but that is as far as
the attorney-general could go or has sought to go. If these orders were void because of the
character of the published notices, then there must have been a great many void orders
entered in the various bank receiverships pending in different district courts during the past
seven years.
The third ground of the notice of motion to set aside the orders fixing the compensation of
the receiver and his attorneys, quoted and referred to in the prevailing opinion, has no place in
the case on appeal. The record does not show it was relied on in the court below, and its could
not be relied on in this court upon the record as presented and was not relied on or even
referred to in the briefs or oral argument.
The prevailing opinion says: At the time the orders fixing the compensation were made
there was no statute authorizing the attorney-general to oppose them nor providing that he
should be served with notice of these motions. This statement is an adverse ruling upon the
sole contention of the attorney-general made upon the hearing on appeal and is the only
proposition of law in the prevailing opinion with which I concur.
The learned chief justice avoids the effect of this ruling by holding, contrary to the views
of all the counsel in the case, that the act of 1913 authorized the attorney-general to appear in
the receivership proceedings on behalf of the creditors. The attorney-general did not appear
on behalf of the creditors, but appeared on behalf of the plaintiffthe state on the relation
of the bank commissionersin the original action, and he then claimed and still claims no
right to appear in the proceedings except by virtue of the banking act of 1907, under
which the action against the State Bank was instituted and the judgment entered.
37 Nev. 55, 71 (1914) In Re Wildes
of the plaintiffthe state on the relation of the bank commissionersin the original action,
and he then claimed and still claims no right to appear in the proceedings except by virtue of
the banking act of 1907, under which the action against the State Bank was instituted and the
judgment entered.
It is asserted in the prevailing opinion that, notwithstanding the state had no further
interests in the proceedings after final judgment of insolvency was entered under the act of
1907, nevertheless the state, under the police power, can again interfere in the winding-up
proceedings, and that the act of 1913 was an exercise of such police power. This reasoning, I
think, is erroneous in at least two respects. The act of 1913 is special act which does no
purport, in any way, to prescribe any regulations for banks which are going concerns or in the
hands of a receiver. It is not a police regulation. It does not purport to create any new rights,
but merely authorizes him to take any proceedings he may deem necessary * * * in the name
of any proper party plaintiff or in the name of the State of Nevada. It does not authorize the
attorney-general to appear for any party, state or otherwise, having no beneficial interest in
the matter, and, if it did, it would be void. While the legislature unquestionably, under its
police power, may enact laws regulating banks which include compulsory liquidation of
insolvent or unsafe banks, and can prescribe the methods of such liquidation, it cannot, after
one method has been established and a final judgment entered in pursuance of that method
and the state's public interest determined by that judgment, enact other legislation enlarging
the state's rights to interfere where only private rights are involved and where no public
interest is affected. Such an attempted exercise of power cannot be sustained on the theory of
a police regulation.
The authorities referred to in the opinion of the chief justice only sustain regulations made
prior to an adjudication of insolvency. As well could it be said that the legislature could pass
an act compelling all the now existing state banks to contribute to the depositors of the
State Bank and Trust Company.
37 Nev. 55, 72 (1914) In Re Wildes
state banks to contribute to the depositors of the State Bank and Trust Company. In State, ex
rel. Howell, v. Wildes, 34 Nev. 94, 116 Pac. 595, we held that the legislature was without
power to change the force and effect of a final judgment in the State Bank case by taking the
liquidation of the bank out of the hands of a receiver appointed by virtue of the act of 1907
and putting it in the hands of the bank examiner under the provisions of the banking act of
1907.
I am unable to see the force of the reasoning to be found in the concurring opinion of my
learned associate. The law of receiverships is well settled. A receiver is entitled to a
reasonable compensation for his services to be fixed by the court. If a court should refuse to
fix any compensation, there is a way open to compel it do so. The intercession of the state
could add nothing to the power that exists in any interested party to take appropriate action. If
the court ordered too great or too little compensation, ample remedy under the law now exists
and always has existed to correct such errors, which do not rise to the dignity of requiring the
exercise of the police power of a state to remedy.
As assumed by the attorney-general and associate counsel for appellant, this case is
determined by the provisions of the act of 1907, under which the judgment appointing the
receiver was entered, and, considered in the light of that statute, the question involved on the
appeal is settled by numerous authorities.
This case was originally assigned to the writer of this dissenting opinion, and shortly after
its submission I submitted to my associates a draft of an opinion which I then believed and
still believe is the law of this case. With some immaterial modifications, what follows is the
draft of that opinion, which expresses my views:
The motion to dismiss upon the ground that the state is neither an aggrieved nor adverse
party raises a question decisive both of the motion and the merits, for if the appellant could
not be considered an adverse party, or could not have been aggrieved by the orders allowing
receiver's fees and the fees of the attorneys for the receiver, then appellant was not
entitled to notice of the hearing of the application for such orders, had no appealable
interest therein, and was without standing upon a motion to set the same aside.
37 Nev. 55, 73 (1914) In Re Wildes
receiver's fees and the fees of the attorneys for the receiver, then appellant was not entitled to
notice of the hearing of the application for such orders, had no appealable interest therein, and
was without standing upon a motion to set the same aside. Rev. Laws, sec. 5327, provides:
Any party aggrieved may appeal in the cases prescribed in this title.
In the recent case of Esmeralda County v. Wildes, 36 Nev. 526, 137 Pac. 400, dismissing
an appeal taken by the receiver of the State Bank and Trust Company from an order affecting
only the rights of creditors as between themselves, McCarran, J., speaking for the court, said:
It must be observed that our statute prescribes that parties aggrieved may appeal. The word
aggrieved' refers to a substantial grievance. The imposition of some injustice, or illegal
obligation or burden, by a court, upon a party, or the denial to him of some equitable or legal
right, would constitute a grievance in the contemplation of this statute. * * * Any creditor or
any set of creditors of the insolvent bank might have appeared in the lower court pursuant to
the notice given at the time of the hearing of this matter and resisted the making of the order,
and it was within their power to prosecute an appeal to this court from such order; they being
properly the parties aggrieved. See, also, 2 Cyc. 628, 631; 23 Cyc. 949; 15 Enc. Pl. & Prac.
249.
A vital question presented upon this appeal is: Has the state any beneficial interest in the
orders sought to be set aside? If it has no such interest, it could not be an aggrieved party,
and hence has no right of an appeal.
The banking act of 1907, under the provisions of section 10 thereof (Stats. 1907, p.229),
authorized the state, through its attorney-general, upon request of the state bank
commissioners, to institute proceedings against a bank doing business under state laws, to
obtain a decree ordering the bank into involuntary liquidation and appointing a receiver for
such purpose of liquidation. If, upon the hearing, the court determined the bank to be
insolvent or in a condition rendering it unsafe to continue business, such a final judgment
could be entered.
37 Nev. 55, 74 (1914) In Re Wildes
to be insolvent or in a condition rendering it unsafe to continue business, such a final
judgment could be entered. It was this character of a judgment which was entered against the
State Bank and Trust Company. (State v. State Bank and Trust Co., 31 Nev. 463, 103 Pac.
407, 105 Pac. 567; State, ex rel. Howell, v. Wildes, 34 Nev. 94, 116 Pac. 595.) Such a
proceeding is purely statutory, and the extent of the state's rights and powers in the premises
is limited by the statutory proceedings. The right of the state to interfere at all in the
proceedings of a bank is dependent upon its police power. The interest which the state had in
instituting the suit and forcing the bank into involuntary liquidation was a public one growing
out of its powers to regulate the banking business. (Ex Parte Pittman, 31 Nev. 43, 99 Pac.
700, 22 L. R. A. n. s. 266, 20 Ann. Cas. 1319; State v. State Bank, 31 Nev. 456, 103 Pac. 407,
105 Pac. 567; State v. Wildes, 34 Nev. 94, 116 Pac. 595; Marymount v. Banking Board, 33
Nev. 333; Eureka Bank Cases, 35 Nev. 80.)
The right of the state to institute a suit against a banking company for the purpose of forcing
it into involuntary liquidation is a part of the state's plan of regulation. (State v. State Bank,
supra.)
What was the subject-matter of the controversy in which the state was an interested party
in the suit against the State Bank and Trust Company? Manifestly, whether the bank was
insolvent or was in an unsafe condition, and, for that reason, should be forced into
involuntary liquidation. After it had obtained that judgment it had accomplished the only
purpose which the statute authorized it to perform. The question of public interest in the bank
was determined by the judgment. As to whom were entitled the assets of the bank, involved
no public question. Process of liquidation then follows as a matter of course under established
equitable rules governing receiverships. The creditors and stockholders were interested in the
disposition of the assets in the hands of the receiver. Either singly or collectively, through
depositors' organization or otherwise, they had a right to appear and object to any action of
the receiver which they might deem injurious in their rights, and they had the right of
appeal.
37 Nev. 55, 75 (1914) In Re Wildes
a right to appear and object to any action of the receiver which they might deem injurious in
their rights, and they had the right of appeal. The state was not their representative and could
not bind them in matters growing out of the liquidation of the bank.
The cases holding that a party, in order to be entitled to have any affirmative relief in an
action or to have the right of appeal, must have a beneficial interest are numerous and without
conflict. The mere fact that a person is a necessary or proper party to an action does not
signify that he is interested in every order that may be entered in the case or in every part of
the judgment. A single judgment may determine the rights of several parties to a suit and each
have no interest in portions of the judgment affecting the rights of others. (Douglas v.
Thompson, 35 Nev. 196, 201.)
In the suit against the State Bank and Trust Company, the state was interested to the extent
of having the bank decreed into involuntary liquidation and a receiver appointed to effectuate
such liquidation. With the entry of the judgment, the state's public interest was fully
accomplished. With the disposition of the assets, no public question was involved, nor is
there statutory authority for further interference.
This precise question has been before the courts in a number of cases and the decisions are
all to the same effect.
Hawley, J. speaking for the Circuit Court of Appeals, Ninth Circuit, in the case of Murray
v. American Surety Company, 70 Fed. 341, held that a proceeding under the California
banking act was a statutory proceeding and that the powers of the attorney-general and the
court were limited by the provisions of the statute. After quoting extensively from the opinion
in the case of People's Home Savings Bank v. Superior Court, 103 Cal. 27, the opinion
contains the following excerpt:
In State Inv. & Ins. Co. v. Superior Court of San Francisco, 101 Cal. 135, 149, 35 Pac.
549, the court, in discussing a similar question, said: The only parties to the present action
are the people of the state and the delinquent corporation.
37 Nev. 55, 76 (1914) In Re Wildes
present action are the people of the state and the delinquent corporation. When the object for
which the action is authorizedthe revocation by the state of the franchise which it
conferredhas been accomplished, there would naturally be no further action for the court to
perform. The state has no interest in either the assets of the corporation or its debts; and,
when it has secured the dissolution of the corporation, its functions in the action have
ceased.'
Harrison, J., speaking for the Supreme Court of California, in the State Investment and
Insurance Company case, supra, further said: The statute does not authorize either the
attorney-general or the insurance commissioner to exercise any further direction or control in
the affairs of the dissolved corporation, or in the distribution of its assets; nor has the state or
any of its officers any interest in having the creditors receive from the assets of the
corporation the amounts in which it may be indebted to them; and it is no concern of the state
how or when the assets of the corporation shall be divided between the stockholders.
The banking act of California, involved in the earlier cases herein referred to or quoted
from, provided a different method of liquidating a bank after it had been adjudge by a court to
be in an unsafe or insolvent condition, and enjoined from continuing to do a banking
business, than that prescribed under the Nevada banking act of 1907. These differences in
method, however, do not affect the controlling question determined in those cases and
applicable to the case at bar.
In People's Home Savings Bank v. Superior Court, 103 Cal. 32, Beatty, C. J., speaking for
the court, said: The attorney-general is authorized to proceed against the corporation alone,
and for the sole purpose, in effect, of winding up its business. In other words, he represents
the interest of the people in a matter of public concern. The state, which has granted to its
creature the privilege of doing a banking business, by his intervention revokes that privilege
for violation of the conditions, express and implied, upon which it was granted.
37 Nev. 55, 77 (1914) In Re Wildes
implied, upon which it was granted. It does not pretend to constitute itself the guardian of
merely private rights of individual stockholders or creditors of the corporation, and has not
empowered the attorney-general in its name to maintain an action in their behalf against the
directors of the corporation for violation of their trust, as has been attempted in this case. His
function as agent of the state is, as above stated, simply and solely to revoke the privilege
granted by the state, of doing a banking business, and, before the court can issue its injunction
for that purpose, the corporation is entitled to a hearing and an opportunity to contest the
allegations against it. * * * We see no reason, therefore, to enlarge, by construction, the
provisions of a statute which was never designed to put the protection of private interests
under the exclusive care of the state, and we are compelled to hold that the ex parte orders of
the superior court above set out were unauthorized and void, and that further proceedings
thereunder should be prohibited.
In Murray v. American Surety Co. (C. C.) 59 Fed. 348 (same case as 70 Fed. 341, 17 C. C.
A. 138, supra), Ross, J., said: The remedy pursued by the attorney-general in the name of the
people of the state in the case of the savings bank in question being statutory only, the court
that took jurisdiction for its enforcement was limited in its powers by the statute under which
it acted. (East Tennessee, V. & G. R. Co. v. Southern Tel. Co., 112 U. S. 306, 5 Sup. Ct. 168,
28 L. Ed. 746; Windsor v. McVeigh, 93 U. S. 274, 23 L. Ed. 914). It will be seen that the suit
the attorney-general is by the statute authorized to commence is one to enjoin and prohibit
the transaction of any further business by such corporation.' * * * That is the extent of the
judgment authorized by the statute to be entered in the suit authorized by the attorney-general;
that is to say, the enjoining of any further transaction of business by the insolvent corporation,
and an order that the commissioners take such proceedings against such corporation as may
be decided upon by its creditors.
37 Nev. 55, 78 (1914) In Re Wildes
In the case of People v. Buffalo S. & T. Co., 131 N. Y. 144, 29 N. E. 948, 15 L. R. A. 240,
the court said: But an action to annul a corporation under article 4 is purely a public action
and proceeds upon public grounds. * * * The simple question to be determined in such an
action is whether the existence of the corporation shall be permitted to continue, and it in no
way concerns the rights and interest of the persons interested in the corporation as between
each other.
In the case of De Forrest v. Coffey, 154 Cal. 444, 449, 98 Pac. 27, 29, a case involving the
receivership of the California Safe Deposit and Trust Company, under a later banking act than
that involved in the California cases cited, supra, an act similar to our banking of 1907, the
court, by Lorigan, J., said: There is nothing in the procedure with reference to special
proceedings involving the liquidation of insolvent banking corporations, which limits or
constrains the exercise of the ample legal and equitable powers of the superior court. * * *
While the court in the special proceeding for liquidation takes charge of the assets of an
insolvent bank and holds them through its officer, the receiver, it only does so to conserve the
interests of those who are properly entitled to share in them. It assumes the administration of
the entire estate; controls the conduct of the receiver, who is its officer, and whose possession
of the assets is the possession of the court; it holds the property and administers the insolvent
estate through the receiver in the interest and for the benefit of those who it may ultimately
determine are entitled to it.
See, also, State, ex rel. Goddard, Attorney-General v. State Bank of Circleville, 84 Kan.
366, 114 Pac. 381.
Counsel for appellant relies upon the mere fact that the state was a party to the original
proceeding to force the bank into liquidation, as ground for claiming that it was entitled to
written notice of the proceedings in question, but the foregoing authorities are a complete
answer to this contention. No authorities supporting a contrary rule are cited, nor have we
been able to find such.
37 Nev. 55, 79 (1914) In Re Wildes
rule are cited, nor have we been able to find such. It follows that the state, having no interest
in the subject-matter of the orders, was not entitled to notice of the hearing of the applications
upon which the orders were based, and has no appealable interest therein.
It is the contention of counsel for respondent that the published notice given of the
applications for the orders in question were sufficient notice to the state, even conceding it
entitled to notice. According to the brief of respondent, the creditors of the bank number over
4,000. It is manifest that personal notice could not be served upon such a vast body of
creditors. It is not contended that the notice to creditors was insufficient, nor is that question
involved upon this appeal. The question of whether the state would be entitled to any
different character of notice, if entitled to any, is unnecessary to consider.
The State Bank and Trust Company and a number of other insolvent banks have been in
course of liquidation in the courts of this state for a number of years, and, if it had been the
practice to serve written notice upon the attorney-general of application for orders fixing
receiver's compensation and the fees of attorneys for receivers, doubtless that fact would have
been called to our attention. We understand it has not been the practice to make such service.
This is of no importance except in that it shows the construction which the courts and
attorneys have heretofore placed upon the law, a construction we think clearly correct.
No question was raised in the lower court or is involved upon this appeal relative to the
amount of compensation of the receiver or the fees allowed his attorneys in the orders sought
to be set aside upon the jurisdictional grounds heretofore stated. The case presents no
question of merits but one of jurisdiction exclusively.
When these orders were under consideration, in pursuance of the published notice, an
opportunity was open to any creditor, or stockholder, to contest the same and to appeal from
the orders if dissatisfied.
37 Nev. 55, 80 (1914) In Re Wildes
and to appeal from the orders if dissatisfied. (Esmeralda County v. Wildes, supra.)
We fully appreciate the importance of having the liquidation of insolvent banks proceed
with the least possible delay consistent with a due regard to the condition of the banks' assets,
and that excessive allowances for the expenses of administration should not be sanctioned. In
the case of State v. Wildes, 34 Nev. 125, we made some pertinent observations upon this
subject. What is a just allowance for the expenses of administration may involve a
consideration of many questions. The law affords a means for the determination of these
questions, where all parties interested may be heard. If any creditor or stockholder of the
corporation deems himself aggrieved by the allowances made to the receiver, he has the same
right of appeal that any interested party has in any litigation where private rights are involved.
The decisions are legion where similar questions have been determined upon appeal by courts
of last resort. Whatever may be the rights of the creditors and stockholders in matters
affecting the liquidation of the affairs of the bank, it is clear, beyond question, that the state is
without interest therein.
No compensation appears to have been allowed the receiver since August 1, 1912. The
question is now before the court where any interested party may again have an opportunity to
be heard.
For the reasons given, I think the appeals should be dismissed.
After mature deliberation, the petitions for rehearing are denied.
[1] Whether in the states in which the old equity practice prevails, not regulated or
superseded by statute, the court may in certain cases order service of notice by publication
and fix the time therefor need not be determined. Under section 1 of the our civil practice act,
which provides that "there shall be in this state but one form of civil action for the
enforcement or protection of private rights, and the redress or prevention of private
wrongs," it has long been recognized that the civil practice act controls in chancery
proceedings.
37 Nev. 55, 81 (1914) In Re Wildes
provides that there shall be in this state but one form of civil action for the enforcement or
protection of private rights, and the redress or prevention of private wrongs, it has long been
recognized that the civil practice act controls in chancery proceedings.
[2] The provisions of section 425 of that act that written notices and other papers, when
required to be served on the party or an attorney, shall be served in the manner prescribed in
the next three sections, when not otherwise provided, apply to equity cases. Also, we see no
reason why district court rule No. 10, relating to the service of notice, and district court rule
No. 45, providing that motions to vacate orders may be made within six months upon notice
to the adverse party, should not so apply.
[3] As none of the creditors or stockholders of the defunct bank is a party to this appeal, it
is unnecessary to determine whether the notice to them, as published by the order of the court,
was insufficient because not in compliance with any provision of the statute or court rule.
Anything said in this regard in the opinion may be considered merely as the dicta of the
writer. The conclusive facts remain that the attorney-general, who represents the state, which
is a party to the action and to the appeal, and which has an interest in the case as a matter of
public policy, and, owing to the great importance that the banking business bears to the
general welfare, was not served with notice of the applications for the orders; that therefore
they were ex parte, so far as the state was concerned; and that, acting under special
authorization from the legislature, and within six months after the making of the orders, and
in compliance with the court rule, which in regard to a matter of practice has the force of a
statute, he moved that they be vacated. Whether he was or was not entitled to notice previous
to the time the orders fixing the salary of the receiver and the compensation of his attorneys
were made does not affect the result of the appeals, for the state has such a interest in the case
that it could authorize him later to appear in the action and move to set aside the orders
after they had been made.
37 Nev. 55, 82 (1914) In Re Wildes
authorize him later to appear in the action and move to set aside the orders after they had been
made. Regardless of whether any notice was required to be given any one before the court
made them, as no notice was served on the attorney-general, we cannot consider them
otherwise than as ex parte orders, which he should be allowed to move to set aside, so that
the state may have her day in court. We need not determine whether, if he had appeared, or
had been served with notice before the making of the orders, they would be final ones which
could have been reviewed only upon direct appeal. As it is the satisfactory conclusion of a
majority of the members of the court that the attorney-general was authorized to act on behalf
of the state at the time he moved to vacate the orders, it is immaterial whether he was
empowered to act at some previous time.
In the petition for rehearing it is said that it needs no authority, in addition to the decision
of this court, to show that it is beyond the power of the legislature to enact any law which
would vacate the conditions in an existing judgment. It is claimed that the legislative act of
1913, directing the attorney-general to act on behalf of the state in the State Bank and Trust
Company case, is violative of the constitutional provisions requiring uniform laws regulating
the practice of courts. In answer to these contentions it is sufficient to say that this act does
not attempt to regulate court practice or to vacate or modify the orders of the district court.
Whether the attorney-general be considered as proceeding under the act of 1913, or under
other authority as the attorney of the state in an action in which the state is a party, the
practice under which he is proceeding, so far as it appertains to the courts, is a general one,
which is regulated by the statutes and court rules applicable to other litigants under similar
conditions.
If it be conceded that the state should be limited to the same powers in all actions
concerning the liquidation of insolvent banks, it does not follow that the state or the
attorney-general must pursue the same course in every action of that nature.
37 Nev. 55, 83 (1914) In Re Wildes
action of that nature. He, as attorney for the sate, may within his authority make such
defenses or institute such proceedings as the circumstances may require and he may deem
best, the same as attorneys for other litigants. The state is no more required to pursue the
same course in the various actions in which it is interested than private individuals. The
procedure in this case is not different from what it would be in other similar cases in which
the state is not interested. The statute directing the attorney-general to act for the state in a
particular case is not a law regulating the practice of courts. Employment or authorization of
counsel by the state or an individual litigant is not a matter coming within any constitutional
provision requiring uniform laws.
Regardless of any difference of views of the members of this court as to whether the
attorney-general was entitled to notice or was authorized to appear in opposition to these
orders prior to the act of 1913, it is sufficient that after the passage of that act, directing him
to take action, and at the time he proceeded, he was empowered to make the motions to set
aside these ex parte orders. Whether he would have been so authorized if that act had not
been passed is not a question vital to the determination of the appeals or requiring a
concurrence of a majority of the court.
As after mature deliberation we feel constrained to adhere to these views, and that our
conclusion would not be changed by a rehearing, the trouble of having one should be avoided.
The setting aside of the orders cannot result in any injustice. The way is still open for a fuller
hearing in the district court, for the presentation of evidence, and argument by respondent, as
well as by the state, and the entry of such orders as may be just and proper.
McCarran, J.: I concur.
The petition for a rehearing should be granted. In the three several opinions heretofore
filed by the three members of this court, no two agreed upon any question of law
presented in the case for consideration except that the opinions of the chief justice and
the dissenting opinion of the senior justice were in accord upon the following proposition,
stated in the opinion of the chief justice:
37 Nev. 55, 84 (1914) In Re Wildes
members of this court, no two agreed upon any question of law presented in the case for
consideration except that the opinions of the chief justice and the dissenting opinion of the
senior justice were in accord upon the following proposition, stated in the opinion of the chief
justice:
At the time the orders fixing the compensation were made, there was no statute
authorizing the attorney-general to oppose them nor providing that he should be served with
notice of these motions.
This was the only question presented in the briefs or arguments upon the original hearing,
and was by the opinion of the senior justice deemed conclusive of the case. While holding
against the only contention made by the attorney-general, the chief justice in his opinion
based a reversal upon the provisions of the act of 1913, notwithstanding the attorney-general
disclaimed any authority under that act, and its provisions were not discussed in the briefs or
oral argument.
The junior justice based his concurrence in the order of reversal exclusively on a contrary
construction of the statute of 1907, than that taken by his two associates. The effect was a
reversal of the order appealed from upon two opinions reaching the same conclusion from
two totally antagonistic points of view.
The views expressed in the opinion of the chief justice, except in reference to the statute of
1907, quoted supra, were not concurred in by either associated, and yet the effect of such
view, nonconcurred in, was to reverse the orders. The opinions heretofore filed present the
novel situation of a majority of the court refusing to sustain the sole contention of the
attorney-general, but that officer, nevertheless, gaining a reversal of the orders appealed from
by reason of the fact that one member of the court held that a reversal should be had under the
provisions of a statute, which the attorney-general specifically disclaimed gave him any
authority.
The view expressed in the opinion of the chief justice as to the act of 1913 presents a
number of very serious questions, which had not been presented to the court at all.
37 Nev. 55, 85 (1914) In Re Wildes
questions, which had not been presented to the court at all. These questions are now presented
for the first time on the petition for a rehearing, and it seems they are not to be considered or
are not deemed of serious moment.
If it be the law of this case as held by two of the members of the court, that, under the
statute of 1907, service upon the attorney-general was not required, and he was not authorized
to appear and oppose the orders appealed from, and if, by any possible construction of the act
of 1913, An act to provide for an investigation of all matters pertaining to the affairs and
receivership of the State Bank and Trust Company, and making an appropriation,
authorization can be found for the attorney-general to appear in the action in the way he has
appeared, then the question is presented as to whether this is not a special law regulating the
practice of courts of justice, contrary to the provisions of section 20 of article 4 of the state
constitution. It is a serious question whether the legislature has power to pass a special act
authorizing the attorney-general to appear in a specific case, and does not authorize similar
appearance in all cases of the same character.
There is another situation disclosed by the three opinions heretofore filed, and that is the
total lack of any agreement as to the law governing the notice that should be given before
making orders such as those sought to be set aside. The chief justice and senior justice held
that, under the law of 1907, notice was not required to be served on the attorney-general. The
junior justice held to the contrary. The chief justice, however, held that notice should have
been served on the creditors and stockholders, and that the published notice was insufficient.
The senior justice agreed with the chief justice, and it was so admitted by counsel, that notice
should be served on the creditors and stockholders, but held that the attorney-general could
not question the sufficiency of notice to parties whom he did not claim to represent, and it
was pointed out that it was virtually admitted by all parties that notice to creditors and
stockholders was sufficient.
37 Nev. 55, 86 (1914) In Re Wildes
parties that notice to creditors and stockholders was sufficient. It thus appears upon the
question of notice, which not only affected the validity of the orders in question but also the
validity of every order entered in every bank case in course of liquidation, there was no
agreement whatever as to what the law is.
In State v. Woodbury, 17 Nev. 353, 30 Pac. 1006, Hawley, C. J., speaking for the court,
said: New trials or rehearings should not be granted simply for the purpose of having a
reargument, unless there is a reasonable probability that the court may have arrived at an
erroneous conclusion, or overlooked some important question, which was necessary to be
discussed in order to arrive at a full and proper understanding of the case.
Here we have the court, dealing with grave questions of law affecting the validity of many
orders in several different bank cases, arriving at ultimate results upon totally variant views of
the law. If this situation does not present a case demanding a rehearing, I am at a loss to know
when such a case would be presented.
If the foregoing reasons are not sufficiently cogent to justify a rehearing, then I think any
deficiency therein is furnished by the opinion of my learned associates denying the petition. It
is stated in this latter opinion that: It is unnecessary to determine whether the notice to them
(creditors and stockholders), as published by the order of the court, was insufficient because
not in compliance with any provision of the statute or court rule. Anything said in this regard
in the opinion may be considered merely as the dicta of the writer.
Conceding, for the purposes of the argument, that what the learned chief justice said in his
decision as to service upon creditors and stockholders was mere dicta, we at least have
concurrence by all members of the court that the sufficiency of notice to creditors and
stockholders is not in this case. When this proposition is conceded, we may be permitted to
revert to the former opinions wherein the majority of the court held that, at the time the
orders were entered, no notice was required to be served on the attorney-general.
37 Nev. 55, 87 (1914) In Re Wildes
the orders were entered, no notice was required to be served on the attorney-general.
It thus becomes necessary, if the order of reversal is to stand, to base it upon some new
theory of law, and this, if I understand correctly the opinion denying a rehearing, is what we
find. While it is entirely proper for the court to change its viewpoints on questions of law, I
think the safer and better practice is to grant a rehearing before doing so.
If I read the opinion correctly, the following excerpt from the opinion may be taken as the
final conclusion of the majority of the court as to what the law of this case is: The conclusive
facts remain that the attorney-general, who represents the state, which is a party to the action
and to the appeal, and which has an interest in the case as a matter of public policy, and
owing to the great importance that the banking business bears to the general welfare, was not
served with notice of the applications for the orders; that therefore they were ex parte, so far
as the state was concerned; and that, acting under special direction from the legislature, * * *
he moved that they be vacated.
This statement might be regarded as a valuable contribution to the corpus juris, were it not
for the fact that it is in direct conflict with the views formerly expressed by the majority of the
court and in direct conflict with all of the authorities that have considered the question, cited
and quoted from in the former dissenting opinion, and is based on an utterly false premise.
To now say for the first time, in the light of all the law upon the subject to the contrary,
that the state, after the judgment entered, has an interest in the case as a matter of public
policy, such as permits the legislature at any time to intervene after its public interest has
been determined by final judgment, presents such a new and radical view of law as would at
least, in my opinion, justify a rehearing and the aid of argument of counsel before adoption.
The opinion of the junior justice, in the former consideration of this case, presented a
clean-cut proposition of law upon which these orders could be reversed, if they could be
reversed at all, to wit: That the statute of 1907 gave the attorney-general a continuing
authority to act for the state, which was a party, not only for the purposes specifically
prescribed in the statute, but for all purposes.
37 Nev. 55, 88 (1914) In Re Wildes
former consideration of this case, presented a clean-cut proposition of law upon which these
orders could be reversed, if they could be reversed at all, to wit: That the statute of 1907 gave
the attorney-general a continuing authority to act for the state, which was a party, not only for
the purposes specifically prescribed in the statute, but for all purposes. If my learned
associates had both agreed upon this construction of the statute of 1907, while I would have
disagreed with them as to such construction, we would have a definite proposition of law
upon which to base the action of this court. The public policy of a state must be determined
from its legislative enactments, not from any conceptions of what a court may think it ought
to be. It may be readily conceded that these orders were ex parte so far as the state was
concerned. They were also ex parte so far as many other persons were concerned. That,
however, is immaterial, unless they were ex parte so far as a party or person beneficially
interested is concerned. If the state was not beneficially interested in the matter before the act
of 1913, the legislature could not create such an interest, and it did not attempt to.
In the State Bank case of Esmeralda County v. Wildes, 36 Nev. 541, 137 Pac. 405, this
court, speaking through McCarrran, J., said: Any creditor, or any set of creditors, of the
insolvent bank might have appeared in the lower court pursuant to the notice given at the time
of the hearing of this matter and resisted the making of the order, and it was within their
power to prosecute an appeal to this court from such an order; they being properly the parties
aggrieved. * * * The seriousness and importance of the result of dismissing an appeal in cases
of this general character causes us rather to reflect on the absence of a law which would
provide for a better protection for the creditors and their respective interests. * * * It appears
to us regrettable that some power is not vested in the court appointing a receiver, in a case of
this kind, whereby at the very time of the appointment of the receiver, or on occasions when
the court might deem it essential, it might appoint some agent, either selected by the
creditors or by the court, whose duty it would be solely to represent the creditors
separate and apart from the receiver, and who might be empowered, by reason of his
representative capacity, to prosecute an appeal so that the sanction or guidance of the
court of last resort might be afforded not only to the receiver, as the representative of the
estate, but also to the court appointing him."
37 Nev. 55, 89 (1914) In Re Wildes
might deem it essential, it might appoint some agent, either selected by the creditors or by the
court, whose duty it would be solely to represent the creditors separate and apart from the
receiver, and who might be empowered, by reason of his representative capacity, to prosecute
an appeal so that the sanction or guidance of the court of last resort might be afforded not
only to the receiver, as the representative of the estate, but also to the court appointing him.
It did not occur to any member of this court, at the time this latter decision was rendered,
that the state had any interest, based on public policy or otherwise, that would authorize or
require the attorney-general to appear on behalf of the creditors and stockholders.
While no showing or contention has been made in this court that the fees allowed the
receiver and his counsel have been excessive, if we were permitted to assume from matters
dehors the record that it is the ultimate object of the attorney-general to attack the amount of
such allowances as excessive, I think it would be better to have advised the attorney-general
that he would doubtless find no difficulty, among the 4,000 creditors of the defunct bank, in
finding one or more who would have permitted the use of their names in a proceeding to set
aside the orders upon a showing of merits. This would have been consistent with the
provision of the statute of 1913, which by its very enactment was a legislative recognition of
the fact that the state had no further interest in the case by virtue of the statute of 1907, which
did not even prescribe that the receivership suit should be instituted in the name of the state
(Stats. 1907, p. 232), and which statute has long since been superseded.
Courts sometimes feel justified in bending the law to prevent an injustice, and from this
has grown the familiar expression, hard cases make bad precedents. Assuming from matters
dehors the record, which we are not authorized to do, that excessive fees are claimed to have
been allowed in this case, it was within the power of the creditors or stockholders of the
defunct bank to have moved, upon a showing of merits, to set them aside.
37 Nev. 55, 90 (1914) In Re Wildes
have moved, upon a showing of merits, to set them aside. Even if it could be said, which may
be doubtful as this is an equity case, that it is now too late for creditors to be heard as to these
former orders, nevertheless they can now be heard as to compensation since those orders have
been made, and, if the former orders were excessive, that can be taken into consideration in
making subsequent orders. The statute of 1913 authorized the attorney-general to appear in
the state bank matter in the name of any proper party. He could unquestionably have
appeared in behalf of a creditor, with the latter's consent. Where I differ with my associates is
in the holding that the attorney-general could have opposed the orders here in question in any
other capacity than that as a representative of a creditor or stockholder. If exorbitant fees have
been allowed, they should, if possible, be corrected. I am not convinced that the
long-established and well-recognized remedies are not sufficient to correct any erroneous
judgment that may have been entered in the proceedings. I still believe they are amply
sufficient.
The attorney-general, in my judgment, should have proceeded in the name of a creditor or
stockholder of the bank, which he could then and can now do upon consent, which ought not
be difficult to obtain. He could not further appear in the name of the state, which has no
beneficial interest in the case beyond that specified in the statute, securing a decree of
involuntary liquidation and the appointment of a receiver, which terminated the state's public
interest.
I prefer to see a rehearing in this case rather than to see established, without grave
necessity therefor, what I believe is a dangerous precedent, in view of the many other orders
that have been entered in the several bank cases.
____________
37 Nev. 91, 91 (1914) State v. Langan
[No. 2095]
STATE OF NEVADA, Ex Rel. GEO. B. THATCHER, Attorney-General, Petitioner, v.
FRANK P. LANGAN, District Judge of the First Judicial District Court of the State of
Nevada, in and for the County of Ormsby, Respondent.
[139 Pac. 514 and 142 Pac. 631]
Geo. B. Thatcher, Attorney-General, and William Forman, for Petitioner.
This is an original proceeding in prohibition. The same legal question is involved as
presented in cases 2073 and 2074 this day decided. Upon the authority of the decision in
those cases the writ will issue as demanded, restraining the district court, and Hon. Frank P.
Langan, the judge thereof, from proceeding with the hearings mentioned in the petition, and
sought to be restrained, until notice has been given to the attorney-general, as provided by the
civil practice act, and he is allowed to appear.
Upon the authority of cases Nos. 2073 and 2074, this day decided, the petition for a
rehearing is denied.
Norcross, J.: I dissent.
____________
37 Nev. 92, 92 (1914) McAllister v. McAllister
[No. 2103]
WILLIAM D. McALLISTER, Appellant, v. ANNIE
V. McALLISTER, Respondent.
[139 Pac. 781]
1. DivorceSufficiency of PleadingCruelty.
A husband's complaint alleging the wife's persistent gross uncleanliness, both as her person and in the
performance of her household duties, her vituperation of him upon his remonstrance with her because of
her conduct, that against his protest, she persistently exposed her person to the view of neighbors and to
men servants in a manner grossly immodest, if not indecent, and used profane and vulgar language and
told vulgar, obscene, and licentious stories is in the presence of the children, so that he felt compelled to
remove his daughter from her influence, and deprive himself of her society, to give her an opportunity to
properly develop her character, that such cruelty was inflicted daily, and frequently several times a day,
and extended continuously through their married life, that it was wholly unprovoked, that it destroyed his
happiness, wrecked his home life, impaired his health, and caused great and grievous mental worry and
torment, that it was unendurable, and had turned his feeling for her into repulsion and disgust, and that he
had ceased to live with her, sufficiently stated a cause of action for divorce upon the ground of extreme
cruelty.
Appeal from the Second Judicial District Court, Washoe County; C. L. Harwood, Judge.
Action for divorce by William McD. McAllister against Annie V. McAllister. Judgment
for defendant, and plaintiff appeals. Reversed and remanded.
Ayres & Gardiner and W. A. Massey, for Appellant.
This is an appeal from a judgment of dismissal, and presents the sole question of the
sufficiency of the complaint to state a cause of action for divorce upon the ground of cruelty.
Without setting out in full the numerous allegations in the complaint upon which the
plaintiff bases a cause of action for divorce upon the ground of extreme cruelty, it will be
sufficient to refer to the allegations in general terms.
The complaint alleges persistent gross uncleanliness upon the part of the defendant, both
as to her person and in the performance of her domestic household duties; vituperation of
plaintiff by defendant upon his remonstrance with defendant because of her course of
conduct; that, against the protest of plaintiff, defendant persistently exposed her person
to the view of neighbors and to men servants in a manner grossly immodest, if not
indecent; that the defendant persistently, and against the remonstrance of plaintiff, used
profane and vulgar language and told vulgar, obscene, and licentious stories in the
presence of the children, and to such an extent that plaintiff felt compelled to remove his
daughter from the influence of her mother, and deprive himself of the pleasure of her
society, in order to give her an opportunity to properly develop her character.
upon the part of the defendant, both as to her person and in the performance of her domestic
household duties; vituperation of plaintiff by defendant upon his remonstrance with defendant
because of her course of conduct; that, against the protest of plaintiff, defendant persistently
exposed her person to the view of neighbors and to men servants in a manner grossly
immodest, if not indecent; that the defendant persistently, and against the remonstrance of
plaintiff, used profane and vulgar language and told vulgar, obscene, and licentious stories in
the presence of the children, and to such an extent that plaintiff felt compelled to remove his
daughter from the influence of her mother, and deprive himself of the pleasure of her society,
in order to give her an opportunity to properly develop her character.
These various alleged acts of cruelty are followed by an allegation to the effect that they
and a long line of continual, systematic, and persistent acts of a similar nature were reiterated
daily, and frequently several times a day; that they extended from shortly after marriage and
continually through the married life; that they were wholly unprovoked; that they grew more
and more frequent and unendurable; that they destroyed plaintiff's happiness, wrecked all his
home life, shattered his nerves, impaired his health, and caused him great and grievous
mental worry and torment, which, if longer endured, would have completely undermined and
destroyed his health; that they turned all the love of plaintiff for defendant into repulsion and
disgust, whereby, on or about the 15th day of December, 1906, plaintiff ceased to cohabit
with, or to have any intercourse with the defendant.
We think it cannot be said, as a matter of law, under the views expressed by this court in
former decisions, and in accordance with the trend of modern authorities, that the complaint
fails to state a cause of action. (Reed v. Reed, 4 Nev. 395; Kelly v. Kelly, 18 Nev. 49, 1 Pac.
194, 51 Am. Rep. 732; Gardner v. Gardner, 23 Nev. 207, 45 Pac. 139; Kapp v. District
Court, 31 Nev. 444, 103 Pac. 235; Mosher v. Mosher, 16 N. D. 269, 113 N. W. 99, 12 L. R.
A. n. s. S20, 125 Am. St. Rep.
L. R. A. n. s. 820, 125 Am. St. Rep. 654; Bailey v. Bailey, 121 Mich. 236, 80 N. W. 32;
Dawson v. Dawson, 132 S. W. 379; Carpenter v. Carpenter, 30 Kan. 712, 2 Pac. 122, 46
Am. Rep. 108; Barnes v. Barnes, 95 Cal. 171, 30 Pac. 298, 16 L. R. A. 660; Lyon v. Lyon,
134 Pac. 650; Nelson on Divorce, secs. 251, 265, 275, 310, 316.)
Judgment reversed, and cause remanded.
____________
37 Nev. 94, 94 (1914) State v. Towers
[No. 2038]
STATE OF NEVADA, Appellant, v. HERBERT
TOWERS, Respondent.
[139 Pac. 776]
1. Indictment and InformationResubmissionSame Grand JuryStatutes.
Rev. Laws, sec. 7005, subd. 6, allows grand jurors to be challenged because of a state of mind which
would prevent them from acting without prejudice to the substantial rights of the challenging party.
Section 7399 provides that the court may dismiss an action after indictment, and section 7401 declares
that such a dismissal shall not bar another prosecution for the same felony. Section 7044 provides that the
dismissal of a charge shall not prevent the same charge from being submitted to a grand jury as often as
the court may direct. Section 7101 provides that, if a demurrer to an indictment is allowed, the judgment
is a bar to another prosecution, unless the court thinks that the defect may be avoided in a new
indictment, and directs a resubmission to the same or another grand jury; and section 7024 limits
evidence receivable by the grand jury to sworn witnesses, legal documentary evidence, and depositions.
Defendant was indicted for obtaining money under false pretenses, a felony, and pleaded not guilty, and
thereafter the indictment was dismissed, and the matter resubmitted to the same grand jury, who reported
No bill. Subsequently the matter was again resubmitted to the same grand jury, who returned an
indictment for felony. Held that, as a reconsideration of the charge or the evidence would be necessary, it
could not be resubmitted to the same grand jury, which, having already formed an opinion on the merits,
was subject to the challenge that their state of mind prevented them from acting impartially, but that the
resubmission must be to another grand jury.
2. Grand JuryQualificationsBias or Prejudice.
A qualified grand jury can only consist of members in whose mind there exists no bias or prejudice
against either of the parties to the case.
Talbot, C. J., dissenting.
Appeal from the Seventh Judicial District Court. Esmeralda County; Peter J. Somers,
Judge.
Herbert Towers was indicted for obtaining money under false pretenses. The indictment
was set aside, and the State appeals. Affirmed.
Cleveland H. Baker, Attorney-General, J. Emmett Walsh, District Attorney, John F. Kunz,
and P. F. Carney, for the State.
Augustus Tilden, for Respondent.
This is an appeal from an order of the district court of Esmeralda County, setting aside an
indictment found by the grand jury of that county, by which indictment the defendant, Herbert
Towers, was accused of obtaining money under false pretenses.
[1] From the record, it is disclosed that on January 30, 1912, the grand jury of Esmeralda
County filed an indictment against the defendant, Towers, charging him with the crime of
obtaining money under false pretenses. The defendant was arraigned under the indictment,
and interposed a plea of not guilty. Later the district attorney of Esmeralda County moved the
court to dismiss the indictment, stating that there was a question in his mind as to the
ownership of the money obtained, as alleged in the indictment. Pursuant to his motion the
court made an order dismissing the indictment, and at the request of the district attorney
entered another order directing that the matter be resubmitted to the grand jury. Thereafter,
and on the 21st day of March, 1912, the same grand jury, after having reinvestigated the case,
made a report to the court that they found No true bill. Subsequently, to wit, on the 8th day
of August, 1912, approximately four and one-half months thereafter, the district attorney
moved the court for an order of resubmission to the same grand jury, and pursuant to the
motion the court made such order, and on the 9th day of August, 1912, the same grand jury
filed an indictment against the defendant charging him with the identical crimeobtaining
money under false pretenses.
charging him with the identical crimeobtaining money under false pretenses. On the 13th
day of August the defendant filed a motion to set aside the indictment upon the ground that
at the time of the finding of the present indictment there existed on the part of the grand jury,
and every member thereof, a state of mind in reference to the case and to the defendant which
prevented it and him from acting impartially and without prejudice to the substantial rights of
the defendant.
In furtherance of the motion, the defendant asserted: Said motion is based upon the fact
that the grand jurors by which the present indictment was found heretofore, and before the
finding of the present indictment, found and returned to this court an indictment, hereinafter
referred to as the former indictment, against defendant, for the identical alleged offense
attempted to be set forth in the present indictment, and prior to the finding of said former
indictment caused to be produced before them, witnesses upon whose testimony they, and
each of them, formed a belief in the probable guilt of defendant of said alleged offense and in
accordance with which belief they on oath found said former indictment.
The motion to set aside the indictment made in behalf of the defendant was sustained by
the court, and, from the order sustaining this motion setting aside the indictment, appeal is
taken to this court by the state.
The position taken by the respondent in this case is that, the grand jury having found a
former indictment against this defendant for the identical offense, and having filed that
indictment in the court, and having thereby accused the defendant of the crime of receiving
money under false pretenses, the acts of the grand jury in that respect made its members
subject to the challenge as prescribed by the statute (subd. 6, sec. 7005), to wit: That a state of
mind existed on the part of each and every one of the grand jurors finding such indictment
which would prevent them from acting impartially and without prejudice to the substantial
rights of the party challenging.
Section 7399 of the Revised Laws prescribes: The court may, either of its own motion or
upon the application of the district attorney, and in furtherance of justice, order any action
after indictment to be dismissed; but in such case the reasons of the dismissal shall be set
forth in the order, which must be entered on the minutes.
It was pursuant to the foregoing section, upon the motion of the district attorney, that the
first indictment was dismissed for the reasons, as stated in the record, that, a defect in the
indictment having been drawn to the attention of the district attorney, he moved the court to
dismiss the indictment, and resubmit the cause to the grand jury.
Section 7401, Revised Laws of Nevada, prescribes: An order for the dismissal of the
action, as provided in this chapter, shall be a bar to another prosecution for the same offense,
if it be a misdemeanor, but it shall not be a bar if the offense charged be a felony.
In this particular instance the offense charged was a felony, and hence the state was not
barred from further investigation or prosecution of the case under proper procedure.
Section 7044, Revised Laws of Nevada, is as follows: The dismissal of the charge shall
not, however, prevent the same charge from being again submitted to a grand jury or as often
as the court shall so direct. But, without such direction, it shall not be again submitted.
As disclosed by the record subsequent to the dismissal of the first indictment, and upon the
motion of the district attorney, the court on two occasions ordered the charge submitted to the
same grand jury. On the first of those occasions the grand jury returned a report of No bill.
On the second occasion, however, the grand jury returned an indictment.
Section 7101, Revised Laws, provides: If the demurrer is allowed, the judgment is final
upon the indictment demurred to, and is a bar to another prosecution for the same offense,
unless the court, being of the opinion that the objection on which the demurrer is allowed
may be avoided in a new indictment, directs the case to be submitted to the same or
another grand jury."
the objection on which the demurrer is allowed may be avoided in a new indictment, directs
the case to be submitted to the same or another grand jury.
The American courts that have had occasion to pass upon this particular subject are by no
means uniform in the rule announced. Some have declared that a grand jury can return a
second indictment for the same offense against a party accused, even without additional
evidence; but in each decision rendered on this subject by the several courts of last resort, it
would appear that each case rested upon and was decided upon its own particular set of
circumstances, and was viewed in the light of statutes peculiar to that state. (State v.
Peterson, 61 Minn. 73, 63 N. W. 174, 28 L. R. A. 324.)
In the case of De Leon v. Territory, the Supreme Court of Arizona, under a statue very
similar to that of ours, held in substance that, where an indictment was attacked by demurrer,
and upon examination was found to imperfectly or insufficiently set forth the offense with
which the grand jury attempted to charge the party defendant, there was no question as to the
right of the grand jury to find a second indictment, where the case was resubmitted to them.
(De Leon v. Territory, 9 Ariz. 161, 80 Pac. 348.)
Counsel for appellant, in their brief, lay considerable stress upon the declaration of the
Supreme Court of California in the case of People v. Northey, 77 Cal. 618, 19 Pac. 865, 20
Pac. 129; but it must be observed with reference to that case that the decision rested entirely
upon a set of circumstances peculiar to the case itself. Northey was indicted by the grand jury
of San Francisco County, after he had appeared as a witness before the grand jury while they
were investigating a case and in which case Northey, by his sworn testimony, admitted his
own inculpation, and from his testimony, together with other matters brought before the
grand jury, they filed their indictment against him. In that case the Supreme Court of
California said: We see no reason why this grand jury should not have indicted Northey on
his own testimony as given before it.
on his own testimony as given before it. If it saw proper to call a witness (Woods) as was
done in this case, before ordering the indictment, we see no reason why it could not do so.
Such a course indicated no bias or prejudice on the part of the grand jury, or any member of
it. In fact, in this case he may be said to have been under consideration from the time that he
gave his testimony in relation to Morrow and until the indictment against him was found. The
disqualifying state of mind referred to in the statute must have existed when the examination
of Northey's case was commenced, when he was called before them as a witness, and it is not
contended that any such state of mind existed at that time.
The Northey case is not strictly in point in the matter before us at this time.
Mr. Bishop, in his work on Criminal Procedure, in discussing this subject, says: The
grand jury, at any time during its term of organization and service, even at a subsequent term
of the court, may find a second indictment, as a substitute for the first, without hearing the
evidence anew.
This principle has been sustained by many jurisdictions. In the case of Ex Parte Job, 17
Nev. 184, 30 Pac. 699, this court held that, although a charge be submitted to three successive
grand juries, and they failed to indict, the fourth grand jury may find a valid indictment, and
the failure of the respective grand juries to find an indictment was not a bar to further
prosecution. This doctrine, as laid down in the Job case, supra, is in harmony with many
decisions of courts of last resort in the several states. (Commonwealth v. Woods, 10 Gray,
477; Whiting v. State, 48 Ohio St. 220, 27 N. E. 96; State v. Branner, 149 N. C. 559, 63 S. E.
169; Terry v. State, 15 Tex. App. 66; State v. Clapper, 59 Iowa, 279, 13 N. W. 294.)
Notwithstanding the many decisions rendered upon this general subject, there appears to
be no plain, adequate rule established whereby the different phases of the subject might be
distinguished. In the Job case, supra, this court went as far as any other jurisdiction has so far
ventured under a statute similar to ours, and yet the conditions in that case are not
identical to those presented in the case at bar.
ventured under a statute similar to ours, and yet the conditions in that case are not identical to
those presented in the case at bar.
Two separate and distinct sections of the statute must be considered in arriving at a
conclusion as to the proper rule in a case of this character. Under section 7044, quoted above,
if a charge be dismissed, it may again be submitted to a grand jury. Manifestly it was the
intention of the legislature that, in case of resubmission of a charge after it had once been
dismissed, it should only go to a grand jury composed of qualified membership, and under
section 7005 a grand juror who is possessed of a state of mind with reference to the case, or to
the parties, which will prevent him from acting impartially, and without prejudice, where
such state of mind is not founded upon public rumor, etc., is disqualified. The filing of the
indictment in the first instance disclosed a fixed opinion on the part of the grand jury, based
upon a full knowledge of the facts presented to them under oath, and to that extent was a
manifestation, and an indisputable evidence, of a state of mind existing on the part of at least
twelve members of the grand jury with reference to the case, which state of mind was formed
and existed, not upon public rumor, statements in public journals, or common notoriety, but
upon the best evidence obtainable and presented to them under oath. (Revised Laws, sec.
7024.)
Under section 7044 no provision is made to resubmit the charge to the same grand jury
after dismissal. In this respect it may be well to contrast section 7044 with section 7101. The
former has reference to an instance where the grand jury itself ignored the charge, in which
case the court may order the charge resubmitted to a grand jury, but not to the same grand
jury; the latter makes especial provision for the resubmission of a charge to the same or
another grand jury. This applies only where the court determines that the defect in the
indictment is only of a formal nature, and can be remedied without any reconsideration of the
charge itself, or the evidence in support thereof.
evidence in support thereof. From these two sections, it is our judgment that a rule may be
formulated which will clarify the procedure, and allay doubt as to what may be the proper
practice. If a demurrer to an indictment be sustained, or the indictment set aside by the court,
and the court thereafter is of the opinion that the objection on which the demurrer is allowed,
or the reason for dismissal, is of such a nature that it may be avoided by merely formal
corrections or changes, the court may properly order the case resubmitted to the same grand
jury. If, however, it is manifest that merely formal changes in the indictment will not suffice,
and that a reconsideration of the charge, or the evidence, by the grand jury would be
necessary, the resubmission cannot be made to the same grand jury, for the reason that,
having already formed an opinion on the merits, the grand jurors are subject to the challenge
that they are possessed of a state of mind which will prevent them from acting impartially.
If the court, either of its own motion, or upon application of the district attorney, dismiss a
charge under section 7399 for reasons other than those merely formal in nature, it follows that
the reconsideration of the whole subject-matter is necessary by the grand jury, and hence a
resubmission can only be made to a grand jury duly qualified, which precludes the idea of a
resubmission to the same grand jury. This is especially true in a case where, the defendant
having interposed his plea of Not guilty, the issues are joined; but it is our judgment that
this rule should apply regardless of the plea of the defendant.
The Supreme Court of California, speaking through Mr. Justice Temple, in considering a
state of facts very much analogous to the one at bar, and under very similar statutes, said:
Perhaps, before the defendant had been arraigned, the indictment could be withdrawn, and
by leave of the court sent back to the jury for amendment. (Terrill v. Superior Court of
Santa Clara Co., 60 Pac. 39.)
The case of Terrill v. Superior Court, supra, was again cited, and the rule approved, by the
Supreme Court of California in the case of People v. Hanstead, 135 Cal.149, 67 Pac.
California in the case of People v. Hanstead, 135 Cal.149, 67 Pac. 763, and there the court
said: It is not necessary to determine whether, upon a presentation of an indictment, and
before any action has been taken upon it, the court could legally resubmit it to the grand jury
for correction. In such cases it might possibly be held that there was really only one
transaction and one indictment, and that the resubmission was, as intimated in the Terrill case
merely formal,' although we do not wish to be understood as expressing any opinion upon
that subject.
In determining whether or not the cause may be resubmitted to a grand jury, a distinction
must be drawn between the acts of the grand jury which would be in the nature of merely
formal corrections and those acts of the grand jury which would necessarily constitute a
reconsideration of the charge itself. In the case of People v. Hanstead, supra, the Supreme
Court of California, under statutory provisions almost identical to those of ours, held that
grand jurors who have found an indictment against a defendant are disqualified from again
passing upon a second charge and finding a second indictment against him for the same
offense. In the case at bar, if the correction sought to be brought about by the district attorney
were merely formal in nature, it is our judgment that the court acted properly in resubmitting
the matter to the grand jury for such corrections. But the record discloses that the grand jury
upon resubmission made a report to the court of No true bill. Under section 7044 of our
Revised Laws this did not prevent the court from again submitting the charge to a qualified
grand jury; but, as we have already stated, a qualified grand jury can only consist of members
in whose mind there existed no bias or prejudice against either of the parties to the cause.
After a grand jury has returned a report to the effect that the charge is dismissed, an order of
the court resubmitting the case to the same grand jury would be in fact an order requiring a
different report, and could serve no other purpose than to indicate to that jury that the court
demanded an indictment.
the court demanded an indictment. The unreasonableness of such a procedure is immediately
apparent, and such a practice, with its attendant results, is not in keeping with modern
criminal jurisprudence. If the court saw fit under such a condition of affairs to resubmit the
charge to another grand jury at a subsequent time, the law does not prevent it from so doing;
in fact, the statute especially provides for such action. In this case, if the first resubmission
was soley for the purpose of making formal changes or corrections, it was authorized by the
statute; but the second resubmission, being after the grand jury had reported No bill, was
unauthorized, and an indictment found under such conditions was, to say the least, voidable.
(Terrill v. Superior Court, 60 Pac. 38; People v. Hanstead, 135 Cal. 149, 67 Pac. 763.)
It follows that the order of the district court in setting aside the indictment should be
affirmed.
It is so ordered.
Norcross, J.: I concur.
Talbot, C. J., dissenting:
I cannot adhere to the theory advanced that a grand jury, or any grand juror, becomes
disqualified to consider a case by reason of legal evidence presented to and considered by the
grand jury in that case while regularly before it for consideration. If this line of argument is to
be given support, it would be as consistent to hold that every grand juror, when he forms an
opinion from evidence received in the grand-jury room, becomes disqualified to act before he
joins in finding an indictment; that every trial juror who forms an opinion from testimony
given in court becomes disqualified from rendering a verdict because he has formed an
opinion before he acts in finding a verdict; and that, if this case is submitted to another grand
jury, and it hears the same witnesses who appeared before the prior one, or the same or other
evidence, the grand jurors would thereby form an opinion and become disqualified to find an
indictment, hear evidence, and form an opinion, without becoming disqualified to indict.
hear evidence, and form an opinion, without becoming disqualified to indict.
The disqualification of a grand juror by reason of any opinion he has should pertain to the
time when he is accepted as a member of the panel, and, if he is free from bias, and a
competent grand juror at that time, he should not become disqualified to act in any case
pending before the grand jury by reason of legal evidence submitted to the grand jury. Mr.
Bishop and other textwriters and courts are correct in their conclusion that the grand jury may
at any time during its service find a second indictment after, or without, hearing further
evidence.
The language of the different sections of our criminal practice act, relating to the setting
aside of indictments and the resubmission of cases to grand juries, appears to be sufficiently
clear, if the words used are given their ordinary meaning. Section 7010 of the Revised Laws
provides: A person held to answer for a public offense can take advantage of any objection
to the panel or to an individual grand juror in no other mode than by challenge. And under
sections 7003 and to 7008, inclusive, a challenge should be made before the grand jury is
sworn, if the accused has been previously bound over. (McComb v. District Court, 36 Nev.
417, 136 Pac. 563.) Under section 7090, if the defendant has not been held to answer before
the finding of the indictment, it must be set aside by the court on his motion upon any
ground which would have been good ground for challenge, either to the panel or to any
individual grand juror. This limits the cause for setting aside the indictment by reason of the
state of mind of the grand jurors to challenge for the state of mind at the time the grand jurors
are accepted and sworn to serve on the panel. The statute does not give any challenge nor
allow any motion to set aside the indictment for opinion thereafter formed by hearing the
evidence in the case.
The motion set aside this indictment being based upon the ground that the grand jurors,
prior to the finding of said former indictment, caused to be produced before them
witnesses upon whose testimony they, and each of them, formed a belief in the probable
guilt of defendant of said alleged offense, and in accordance with which belief they on
oath found said former indictment," the motion should be considered as governed by
section 7090, mentioned, which is the only one providing for a motion to set aside an
indictment on that ground, and by section 7092, which provides that: "If the motion is
granted, the court must order that the defendant, if in custody, be discharged therefrom;
or, if admitted to bail, that his bail be exonerated; or, if he has deposited money instead of
bail, that the same be refunded to him, unless it directs that the case be resubmitted to
the same or another grand jury."
finding of said former indictment, caused to be produced before them witnesses upon whose
testimony they, and each of them, formed a belief in the probable guilt of defendant of said
alleged offense, and in accordance with which belief they on oath found said former
indictment, the motion should be considered as governed by section 7090, mentioned, which
is the only one providing for a motion to set aside an indictment on that ground, and by
section 7092, which provides that: If the motion is granted, the court must order that the
defendant, if in custody, be discharged therefrom; or, if admitted to bail, that his bail be
exonerated; or, if he has deposited money instead of bail, that the same be refunded to him,
unless it directs that the case be resubmitted to the same or another grand jury.
Language could not more clearly or directly authorize the resubmission to the same grand
jury.
If section 7044 can in any way be considered as controlling, as held in the opinion, there is
nothing in the language of that section which prohibits the court from submitting the case
again to the same grand jury. The words relied upon in that section, that the dismissal of the
charge shall not, however, prevent the same charge from being again submitted to a grand
jury, or as often as the court shall direct, do not to my mind contain such prohibition. The
same grand jury was a grand jury as much as the same man is a man, and the provision
that the same charge could be again submitted to a grand jury does not indicate that the case
could not be submitted to the same grand jury. The decision of the majority of the court in
effect legislates into the statute the words, but the case shall not again be submitted to the
same grand jury. The words in this section, as often as the court shall so direct,
emphasizes the right of the district court to resubmit the case to the same grand jury. I am
unable to concur in the opinion that the same grand jury was not a grand jury, or was not
embraced in the meaning of the words a grand jury.
A strained construction should not be placed upon the statute, which would result in
delaying criminal proceedings, in additional unnecessary expense to the county, and
trouble to extra grand jurors for a new panel and witnesses in attending again, in order
that a person accused of crime may be indicted by a second grand jury, when the first is
not shown to have been prejudiced or disqualified at the time it was impaneled, or to
have formed any opinion, except by hearing evidence in the case properly introduced
before the grand jury which presumably would have the same effect upon the second
grand jury.
the statute, which would result in delaying criminal proceedings, in additional unnecessary
expense to the county, and trouble to extra grand jurors for a new panel and witnesses in
attending again, in order that a person accused of crime may be indicted by a second grand
jury, when the first is not shown to have been prejudiced or disqualified at the time it was
impaneled, or to have formed any opinion, except by hearing evidence in the case properly
introduced before the grand jury which presumably would have the same effect upon the
second grand jury. If there should be additional witnesses or other evidence for a second
grand jury, it could as well be heard by the first one, which should have as much right to form
its conclusions and act on the evidence in the case as a second grand jury. As we have often
held, errors which do not prejudice should not avail. (State v. Clark, 36 Neb. 479, 135 Pac.
1083; State v. Williams, 31 Nev. 360, 102 Pac. 974; State v. Petty, 32 Nev. 384, 108 Pac.
934, Ann. Cas. 1912d, 223; State v. Smith, 33 Nev. 459, 117 Pac. 19; State v. Mircovich, 35
Nev. 485, 130 Pac. 765, and cases there cited.)
____________
37 Nev. 107, 107 (1914) State v. Skinner
[No. 1908]
STATE OF NEVADA, Respondent, v. Fred
SKINNER, Appellant.
[139 Pac. 773]
1. Criminal LawEscape Pending AppealDismissal.
A rule similar to that adopted by the California courts, under statutes similar to those of this state, of
dismissing appeals taken by a defendant who thereafter escaped and who does not return to custody
within a time specified, ought to be and, in future, doubtless will be applied.
2. Criminal LawEvidence.
Where there is no witness to a homicide other than the defendant who becomes a witness in his own
behalf and assents self-defense and that deceased was the assailant, his version of the killing is subject to
be tested by all the physical facts and such evidentiary facts and circumstances as would reasonably tend
to throw any light upon the question, such as the relationship and the degree of affection and regard
which the parties bore toward each other as bearing upon the question of the probability of who made the
first assault.
3. HomicideEvidenceDeclarations of Deceased.
In a prosecution for homicide, where the defendant, who was the only witness to the shooting,
testified that he shot deceased, with whom he was living in adultery, in self-defense, a letter written to
him by the deceased a short time before, in which she manifested the strongest affection for him, was
admissible as tending to show the improbability of her attacking him.
4. Criminal LawInstructionsReasonable Doubt.
In a prosecution for homicide an instruction on reasonable doubt, which contrasted the rule as to
burden of proof in civil and criminal cases, and gave as the reason for the latter rule that the charity of
the law and its solicitude for the safety of the innocent are such that an artificial presumption of
innocence attends a person accused of crime, was not an incorrect statement of the law because of the
use of the words charity and artificial, and could not have misled the jury, where it was one of nine
instructions on the subject of presumption of innocence and reasonable doubt.
Appeal from the Fifth Judicial District Court, Nye County; Mark R. Averill, Judge.
Fred Skinner was convicted of murder in the second degree, and he appeals. Affirmed.
Bartlett & Thatcher and J. M. Frame, for Appellant.
Cleveland H. Baker, Attorney-General, and E. T. Patrick, Deputy Attorney-General, for
the State.
Thomas E. Kepner, for Appellant on petition for a rehearing.
This is an appeal from a judgment and from an order denying defendant's motion for a new
trial. Defendant was convicted of murder in the second degree, upon which a sentence of fifty
years' imprisonment was imposed. The indictment charged the defendant with the murder of
one Sadie Isabel Heskett, at Rhyolite, in the county of Nye, on the 3d day of January, 1908. A
former conviction of murder in the first degree was set aside by this court, and the case
reported in 32 Nev. 70, 104 Pac. 223. The verdict upon the second trail was returned March
1, 1910. The case was not submitted to this court until January 21, 1914. Great delay in the
submission of this case has been due in part to two reasons: Pending the appeal, the appellant
escaped from the state prison, and was for some time at large before his capture and
reincarceration. In December, 1912, Attorney-General Baker died, and Hon. Geo. B.
Thatcher, who had represented the appellant in the court below, was appointed his successor.
Attorney-General Thatcher thereupon withdrew as counsel for the defendant, but requested
that time be given defendant to procure other counsel, and informed the court that in future
the state would be represented by E. T. Patrick, Esq., who had been the deputy
attorney-general under Mr. Baker, and had been continued in that office. The case, however,
had been briefed by Mr. Thatcher and Attorney-General Baker prior to the death of the latter.
Subsequently J. M. Frame, Esq., was entered as attorney for the defendant, and in January,
1914, filed a supplemental brief.
[1] A motion to dismiss the appeal, because of the escape of the appellant, was noticed by
Attorney-General Baker, but was never formally presented to the court. We think this phase
of the case should not be permitted to pass without notice. Some of the states have statutory
provisions providing for the dismissal of appeals in cases where the appellant escapes
while the appeal is pending.
provisions providing for the dismissal of appeals in cases where the appellant escapes while
the appeal is pending. Where there is no statutory provision on the subject, the courts have
generally dismissed appeals, either conditionally or unconditionally, upon the escape of the
appellant. The rule adopted by the California courts, under a practice act similar to the
practice act in this state, is to dismiss appeals unless the appellant returns to custody within a
time specified. (People v. Redinger, 55 Cal. 290, 36 Am. Rep. 32; People v. Elkins, 122 Cal.
654, 55 Pac. 599; People v. Sitz, 130 Pac. 858.) See, also, 12 Cyc. 879. Some similar rule
ought to be, and doubtless will be, applied in future where the appellant escapes pending
appeal.
[2-3] But two questions of alleged error have been presented in the briefs filed. Error is
assigned in the admission by the court of a letter written by the deceased to the defendant
about a month prior to the homicide. The letter reads as follows: My dearest: I can't get out
this afternoon and am in my room darling, quite miserable. I'm afraid love that isn't going to
be settled. Now sweetheart I'm going to leave in the morning. I think it will be best. I'll go
away and get settled. There's nothing here for me you know. I don't think they'd let me alone
if I went to work. But I'll get everything in shape and will be able to send the money for the
fine and enough for you to come on. Dearest you should try to brace up and trust me. I
wouldn't have gone this far if I hadn't have intended to stick to you. It is the tho't of your
unhappiness that makes it so hard for me. Now darling you'll be out at the most in a week. I'll
send the money to you made out in Well's Fargo. You can indorse them and pay your fine and
come right to me. It seems the best way. You can come perhaps on the next train after you get
out. A week isn't long and I'll have the money then. Now darling the thing most sacred to me
is our little Edith and as a guarantee of my faithfulness I'm sending her picture from my
locket so that you can look at it and trust me and then give it back when we meet again.
give it back when we meet again. Now dearest if I can get any other work when I get into a
new town its no more tenderloin for mine. It doesn't pay. Then when you come you can go to
work and all will be well. Sweetheart I would love to have you go with me but it seems
impossible. I've tried so hard to get the money. But love, the impossible is the impossible and
another name for money just now so have patience and be good. No matter what any one
thinks of you I know you to be truly good. I know you have the most loyal heart that beats in
human breast and most of all you are the only man in the world for me. Now sweetheart I'm
not coming to see you; it is far too painful. I'll pray for you every night that the days may
seem less long. I will go to sleep with your image in my heart. I will know you to be faithful
to me and surely you can be satisfied for a few short days. The fine will be a little less then
and I'll make it somehow. Don't think that I've been contented one minute you've been in
there for I've been on the verge of collapse all the time; but I've got to brace up and that is all
there is to it. When you get out I'll be as sick as I want to. When you get discouraged dearie
think of that little piece of poetry Then let come what may, I have already had my day.'
Surely we have been happy enough to make up for a few unpleasant days. The sun you know
can't always shine. We must accept the sunny days with thankfulness and the rainy days as
our due. I'm going to work down there and get you some kind of work and we'll be quite
happy. Things could have been much worse love. I might have been in and that would be
dreadful. I'm kissing little Edith's face darling and she will carry my kisses to you with a short
good-bye. Surely she knows how closely she binds us together. Mona.
The proofs showed that at the time of the homicide, the appellant and decedent were living
together in an adulterous relationship in the town of Rhyolite, and that prior to their going to
Rhyolite had so lived in other places.
places. Deceased was a proprietress of a dance hall, and the defendant a gambler by vocation.
The homicide occurred about the hour of 3:30 in the morning, and shortly after the return of
the appellant to the house where the parties were living together. The appellant was the sole
surviving witness of the tragedy. Three bullets were found to have entered the body of the
deceased and two to have entered the body of the defendant. One bullet entered the body of
the deceased at the right shoulder, on the median line, and came out under the arm posterior
to the median line, and had a course downward and slightly backward; another bullet entered
between the shoulder-blade and the back-bone and went almost through the body; another
bullet entered the back of the neck and had a downward course. Upon the body of the
defendant a bullet entered the left breast, passing downward and outward through the pectoral
muscle for a distance of three or four inches, the point of exit being about one inch below the
point of entrance. Another bullet entered the body of the defendant over the eighth rib, a half
inch posterior to the median line, passed through muscular tissue, and had its exit over the
twelfth rib an inch and a half posterior and two and one-half inches below the point of
entrance. It is proper to note that at the trial there was some contention between the
prosecution and defense as to the point of entrance of the bullet which caused the wounds last
described. Neither of the wounds of the defendant appear to have been regarded as serious.
Immediately, or shortly after the shooting, the defendant ran out of the house and down the
street, dressed only in a union suit of underclothing. He was heard by the night officer to be
saying in a loud voice, I want to make a confession.
The officer testified that he said to him: I have only a short time to live. I want to make
this confession. Norma shot me. I shot Norma and then I shot myself. Norma was not to
blame in this affair at all. I shot Norma with soft-nose bullets. I was living with Norma. I was
not married to her.
not married to her. I want to make a confession to my wife and relatives living in Colorado.
Defendant was immediately thereafter taken to the office of Dr. Wilkinson, who dressed his
wounds. The defendant insisted on a statement from the doctor as to the seriousness of his
wounds, and was informed by the doctor that he did not consider them serious. The doctor
testified that shortly thereafter the defendant said that Norma shot him and offered the gun to
him, wanting him to shoot her, and that he refused to do it, and that she shot herself. It seems
to have been the contention of the defense at the trial that the defendant was so highly excited
at the time these statements were made that he was not responsible.
At the trail defendant admitted the killing, but set up self-defense as a justification of his
act. In brief his testimony was to the effect that he had informed defendant that it was his
intention to leave and return to Colorado; that an altercation resulted between them, in which
the deceased shot the defendant twice; that defendant then wrested the pistol from her,
whereupon deceased started for another part of the house where another revolver was
supposed to be; that the defendant then shot her, believing that she was about to arm herself
again and make another deadly assault upon him. As there was no witness to the shooting,
other than defendant, his version of the affair was subject to be tested by all the physical facts
and such evidentiary facts or circumstances as would reasonably tend to throw any light upon
the question.
The relationship and the degree of affection or regard which the parties bore towards each
other was a circumstance which the jury had a right to consider in connection with the
physical facts and other circumstances surrounding the killing, as bearing upon the question
of the probability of the deceased or the defendant making the assault. When the defendant
interposed self-defense as a justification for his act in taking the life of deceased, he charged
the latter with being the assailant, and the issue then shifted to the question whether deceased
had made an assault upon defendant with intent to take his life.
made an assault upon defendant with intent to take his life. This being the question, it was
competent for the defense to have shown a feeling of hatred or ill-will upon the part of the
deceased towards the defendant, if such were the fact. Upon the other hand, it was proper for
the state to show the existence of feelings of love, affection, or regard upon the part of the
deceased towards the defendant as a circumstance bearing upon the question of probability of
the acts of deceased.
Wigmore says: Statements before the act, asserting malice or hatred, are always received
against an accused, except so far as the time of feeling is so remote as to make it irrelevant. Is
there any reason why prior statements in favor of the accusedfor example, of good feeling
towards the injured party, or of fear of him as an aggressorshould not be equally
admissible? Conduct offered as circumstantially evidential does not seem to be objected to. *
* * To hold that every expression of hatred, malice, and bravado is to be received, while no
expression of fear, good-will, friendship, or the like can be considered, is to exhibit ourselves
the victims of a narrow whimsicality which might be expected in the tribunal of a Jeffreys,
going down from London to Taunton, with his list of victims in his pocket, or on a bench
condemning to order,' as Zola said of Dreyfus's military judges. * * * There is no reason why
a declaration of an existing state of mind, if it would be admissible against the accused,
should also be admissible in his favor, except so far as the circumstances indicate plainly a
motive to deceive. (Wigmore on Evidence, vol. 3 sec. 1732.)
In reference to the case of Pettit v. State, 135 Ind. 393, 34 N. E. 1118, Wharton's Criminal
Evidence (10th ed.), vol. 2, sec. 904, says: On the part of one accused of having killed his
wife as a result of his loss of love and affection for her, and his infatuation for another
woman, an affectionate letter written by the wife to the husband is relevant to disprove
motive for the crime.
Is there not more reason why such a letter would have been admissible, if the husband
had set up self-defense and charged the deceased wife as being the assailant, to disprove
motive on her part for attack upon her husband towards whom she entertained feelings of
affection?
been admissible, if the husband had set up self-defense and charged the deceased wife as
being the assailant, to disprove motive on her part for attack upon her husband towards whom
she entertained feelings of affection? We think there is. The court below did not err, we think,
in admitting the letter in question.
[4] Error is assigned in the giving of the following instruction: In civil cases the
well-known rule is that the party sustaining the burden of proof is entitled to succeed in his
action or defense if he supports his side by what is termed a preponderance of
evidence'that is, if the evidence adduced by him is of greater weight or probative value than
that adduced by his opponent, so as to turn the scales of justice in his favor. But the charity of
the law and its solicitude for the safety of the innocent are such that an artificial presumption
of innocence attends a person accused of crime throughout every stage of the trial until it is
overcome by the degree of proof hereafter stated. This presumption is in the nature of
evidence in his favor. The strength of this presumption is not overcome by a mere
preponderance of the evidence, nor by any weight of preponderating evidence, but it stands as
the shield of the accused until it is overthrown by evidence possessing such a degree of
probative force that it satisfied the minds of the jurors beyond a reasonable doubt that he is
guilty of the crime charged. The usual formula in which this doctrine is expressed is that
every man is presumed to be innocent until his guilt has been established beyond a reasonable
doubt.
The foregoing is one of the nine instructions given upon the questions of presumption of
innocence and reasonable doubt. It is contended that this instruction is an invasion of the
province of the jury, in that it is a comment upon the weight to be given the presumption, and
that it is fundamentally wrong as a statement of law upon the subject; that the court in the
first instance apologizes for the existence of this rule of law, and then depreciates it by
telling the jury that it is only artificial.
depreciates it by telling the jury that it is only artificial. We are not cited to any specific
authorities holding that an instruction substantially in the form of the one under consideration
is erroneous, nor do we think an analysis of this instruction will support the objections raised
against it. We are inclined to the view that the comparison of the rule in civil and criminal
cases contained in the fore part of the instruction adds nothing to the value, and only opens
the door to controversy. As a statement of law, however, it is not objectionable. The same
may be said relative to that part of the instruction stating that the presumption is an artificial
one, based on the charity of the law and its solicitude for the safety of the innocent. The
main objection to this instruction appears to be based on the use of the words charity and
artificial, particularly the latter. Our attention has not been called to any case where a
similar instruction had been considered where the word charity had been used.
Similar expressions are to be found, however, in approved instructions, such as The law
in its humanity presumes, etc. (Brickwood-Sackett, Instructions, secs. 2639, 2644.) Even if
we were to concede an inappropriate use of the word charity in the instruction, it is not for
such trivial inadvertencies that judgments are reversed. The reference to the presumption as
being artificial is not incorrect. The late work of Chamberlayne on the Modern Law of
Evidence treats the presumption of innocence under the general heading of
Pseudo-Presumptions. Pseudo is defined as a prefix signifying false, counterfeit, pretended,
or spurious. (Webster.) The author, in section 1172, says: Few false presumptions of law
have so wide a vogue or have created so intolerable a confusion in the law of evidence as the
so-called presumption of innocence.' * * * A phraseology commonly employed in stating this
pseudo-presumption of law is to the effect that in criminal cases a person accused of crime is
presumed to be innocent until proved to be guilty."
until proved to be guilty. While, as a general rule, it doubtless would be better for a court, in
stating a rule of law in an instruction, not to accompany it with the reasons for its existence,
or with phraseology that, however correct, might be misleading to the average juryman,
nevertheless we can see nothing in this instruction that would warrant us in saying that the
jury might have been misled by it. When the instruction is considered in connection with the
other instructions given upon the subject,it is manifest that the defendant could not have been
prejudiced by the instructions of the court on the law of presumption of innocence. See, also,
Wigmore on Evidence, sec. 2511.
Judgment and order affirmed.
McCarran, J., having been district attorney of Nye County during the first trial of the
appellant, did not participate in the case.
[NotePetition for a rehearing was filed March 25, 1915.]
____________
37 Nev. 117, 117 (1914)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA
____________
APRIL TERM, 1914
____________
37 Nev. 117, 117 (1914) Peterson v. Pittsburg Silver Peak Gold Mining Co.
[No. 2090]
ROBERT S. PETERSON, Respondent, v. PITTSBURG SILVER PEAK GOLD MINING
COMPANY (a Corporation), Appellant.
[140 Pac. 519]
1. TrialRulings on EvidenceRemarks by Trial Judge.
In ruling on the admissibility of evidence, the trial judge should confine his remarks strictly to that
question, and not make unnecessary statements, such as that the evidence will do no harm, or as to one of
the attorneys being a good fellow, etc.
2. TrialHarmless ErrorRemarks of Trial Judge.
Remarks by the trial judge which are calculated to mislead the jury or prejudice the rights of either
party are reversible.
3. Appeal and ErrorHarmless ErrorRemarks of Trial Judge.
In denying a motion to strike certain evidence, the trial court remarked, I don't think the testimony
does you any harm, and, in overruling an objection to an interrogatory, stated to appellant's attorney,
You are not on surrebuttal testimony, but I will allow it just to show you that we give every leeway
possible, possibly more than the court should, and, in ruling on a motion to strike an answer, also stated
to counsel, I have known you a long time, and I like you, and you are a good fellow; but, when you
come to the trial of a case, I know an attorney is ambitious; I know he wants to do everything in the
world; and I admire that; but don't step beyond the bounds. Held that, while the trial judge's remarks
were improper, they were not reversible error, in absence of a showing of prejudice to appellant
therefrom.
4. Appeal and ErrorBurden of Showing Error.
The parties claiming error on appeal must clearly establish it.
5. NegligenceContributory NegligenceComparative Negligence.
Rev. Laws, sec. 5651, providing that, in actions against a mine owner for damages for injuries to an
employee, the employee's contributory negligence shall not bar a recovery, where it was slight and the
employer's negligence was gross in comparison, substitutes for the common-law rule of contributory
negligence the rule of relative or comparative negligence.
6. Master and ServantRisks Assumed.
While a miner must use reasonable care for his own safety, he does not assume the risk of a hidden
danger created in his place of employment by other employees, over whom he has no control, and of
which he has no warning or notice, so that a miner would not assume the risk of injury from drilling into
an unexploded hole, left in that condition by a previous shift of workmen, of which he had no notice.
7. Master and ServantMaster's DutiesSafe Place of Work.
The master must furnish a reasonably safe place of work.
8. ReleaseExecutionConflicting Evidence.
Where evidence is conflicting as to the due execution of a written lease signed by the plaintiff in an
action for personal injuries, the court will not disturb the verdict.
9. TrialOffer of EvidenceSufficiency.
In a miner's action for personal injuries, defendant offered in evidence a conversation between witness
and plaintiff some time after the accident to show, as stated by counsel, that the action was instituted in
bad faith, with knowledge by plaintiff that he knew that the shift boss and defendant were not responsible
for his injury, and that he alone was responsible, and to contradict any evidence of negligence by
defendant, and to prove its claims that the accident was not caused by its negligence, and to contradict
plaintiff's evidence tending to show negligence by the defendant. Held, that the offer was sufficient to
warrant admission of a declaration against interest by the plaintiff.
10. EvidenceAdmissionsDeclarations Against Interest.
What a party voluntarily admits to be true may be reasonably taken to be true, notwithstanding that
the admission is contrary to his interest.
11. EvidenceDeclarations Against Interest.
The voluntary statement of one injured, made after the accident, and relating thereto, is admissible, if
relevant, for consideration by the jury in connection with the other evidence.
12. EvidenceAdmissions.
Every prior statement of a party inconsistent with his present claim tends to throw doubt upon it, and
is admissible in evidence as an admission against interest, regardless whether, when the statement was
made, it was in his own favor or against his interest.
13. EvidenceAdmissionsWeight.
The weight to be given to an admission or declaration against interest is for the jury.
14. Appeal and ErrorPresentation BelowGrounds of ObjectionAdmission of Evidence.
Where an objection to evidence was sustained, not because of the form of the offer, but on the ground
that the evidence was not admissible for the purpose offered, appellant cannot claim on appeal that the
evidence was properly excluded because the offer was not in proper form.
15. Appeal and ErrorHarmless ErrorPrejudicial Effect.
Unless an error substantially affects the rights of the complaining party, so that it could be reasonably
claimed that a different result might have been reached, had the error not occurred, it is harmless.
16. Appeal and ErrorHarmless ErrorRules on Evidence.
Error in admitting or excluding evidence on material issues is reversible.
Appeal from the Second Judicial District Court, Washoe County; Thomas F. Moran,
Judge.
Action by Robert S. Peterson against the Pittsburg Silver Peak Gold Mining Company.
From a judgment for plaintiff, and an order denying a new trial, defendant appeals. Reversed
and remanded for new trial.
Samuel Platt and George Martinson, for Appellant.
Dixon & Miller, for Respondent.
This is an action in damages for personal injuries, alleged to have been sustained by the
respondent through the negligence of the appellant, in whose employ he was engaged.
The record discloses that the respondent, Peterson, on the 14th day of June, 1911, was a
member of the 6 p.m. shift in the Mary mine, and on the date of the accident was engaged as a
machine driller in the Valcalda tunnel. At about 1 o'clock in the morning of the 15th of June,
the respondent, while so engaged, drilled into an unexploded hole left by the previous shift.
The result of his act was an explosion, by reason of which one member of the shift was
instantly killed, another died in nine days thereafter from the injuries received, another was
more or less seriously hurt, and the respondent received serious injuries.
thereafter from the injuries received, another was more or less seriously hurt, and the
respondent received serious injuries.
The trial was had before a jury in the Second judicial district court, and a verdict was
rendered in favor of respondent in the sum of $29,250. The appellant in this case, defendant
in the court below, interposed and especially pleaded contributory negligence on the part of
respondent, assumption of risk, and an executed release in accord and satisfaction.
From the judgment rendered in favor of respondent, and from the order denying appellant's
motion for a new trial, appeal is taken to this court.
The appellant sets up four major grounds upon which it relies for reversal, namely:
Prejudicial statements and remarks made by the court during the course of the trial; erroneous
rulings as to the admissibility of testimony made during the course of the trial; failure on the
part of the respondent to establish the negligence of appellant; and errors of the trial court in
giving certain instructions and refusing certain other offered instructions.
Assignment No. 53 has to do with the remarks of the court made in ruling upon the motion
of appellant to strike certain testimony. The court in that instance ruled against the moving
party, and, in the course of his ruling, made this remark: I don't think the testimony does you
any harm.
Assignment No. 77 is with reference to the remarks of the court in overruling an objection
made by counsel for respondent to an interrogatory propounded by counsel for appellant, in
which the court said: I will tell you. (Addressing counsel for appellant.) Just as soon as this
went in evidence, or you could have called Mr. Jussen right after they were put in evidence,
or you could do it afterwards. You are not on surrebuttal testimony, but I will allow it just to
show you that we give you every leeway possible, possibly more than the court should.
Assignment No. 76 is with reference to the remarks of the court, presumably addressed to
counsel for appellant, while he was cross-examining a witness. The transcript is as follows:
Q. Now you were not there, were you, when this explosion occurred? A. I hope not.
Q. And all that you know about the explosion was what you speculated upon or the
conclusions you drew after you went up there; is that true? A. Yes, sir.
Mr. MillerObject; it is a compound question.
Mr. HairstonAnd a misleading question.
The CourtSustain the objection.
Mr. PlattException on the ground it is proper cross-examination.
Mr. MillerMove the answer be stricken out.
The CourtI will tell you. I have known you a long time, and I like you, and you are a
good fellow; but, when you come to the trial of a case, I know an attorney is ambitious; I
know he wants to do everything in the world; and I admire that; but don't step beyond the
bounds.
To the latter remark exception was taken by counsel for appellant.
All of these remarks set up as assignments of error by appellant were made in the presence
and hearing of the jury, and were excepted to by counsel for appellant. It is difficult to
understand why remarks of the character appearing in the record in this case are necessary at
all on the part of the trial court. While it is true that not every remark of the trial court will
constitute reversible error, where it is made with reference to the admissibility of evidence,
yet there is nothing of which a nisi prius judge should be more careful than in his remarks or
assertions made with reference to admitted or rejected testimony during the course of a trial.
The average juror is a layman; the average layman looks with most profound respect to the
presiding judge; and the jury is, as a rule, alert to any remark that will indicate favor or
disfavor on the part of the trial judge.
disfavor on the part of the trial judge. Human opinion is ofttimes formed upon circumstances
meager and insignificant in their outward appearance; and the words and utterances of a trial
judge, sitting with a jury in attendance, are liable, however unintentional, to mold the opinion
of the members of the jury to the extent that one or the other side of the controversy may be
prejudiced or injured thereby.
[1] A trial judge's ruling upon the admissibility of testimony is a ruling based solely upon
the law of evidence; his comments or assertions or declarations have no place in the ruling,
save and except in so far as they may express his idea as to the applicability of the matter
presented, based upon the rules of evidentiary law. As to whether or not an attorney is a good
fellow or not, a good fellow plays no part in the enforcement of a rule admitting or excluding
testimony. As to whether or not a particular piece of testimony does harm or does not do
harm is not for the court to say, and remarks upon this phase, made in the presence of the
jury, can have no beneficial effect; they are better left unsaid.
[2-3] If remarks made by the judge in the progress of a trial are calculated to mislead the
jury or prejudice either party, it would be grounds for reversal. We are not inclined to view
the remarks made by the trial judge in this case in that light. (Deshler v. Beers, 32 Ill. 368, 83
Am. Dec. 274.)
[4] While it may be reasonable to assume that remarks of the trial judge, such as those
complained of in this case, may have an influence prejudicial to one or the other side of the
case, yet, in view of the rule that the party who alleges error must establish the same clearly,
we would not disturb the judgment in this case by reason of the errors assigned with reference
to the remarks of the trial court. (McMahon v. Eau Claire, 95 Wis. 640, 70 N. W. 829.)
Appellant assigns as error the refusal of the trial court to grant appellant's motion for a
nonsuit and for an instructed verdict. In this respect it is the contention of the appellant that
an employee, injured from drilling into an unexploded shot, is held to assume the risk as
being one incident to his employment, and further contends that the doctrine which
requires the master to furnish a reasonably safe place for his employees to work is not
applicable, where the object of the work performed is to continually change the place.
of the appellant that an employee, injured from drilling into an unexploded shot, is held to
assume the risk as being one incident to his employment, and further contends that the
doctrine which requires the master to furnish a reasonably safe place for his employees to
work is not applicable, where the object of the work performed is to continually change the
place.
[5] In reviewing this phase of the case, it must be observed that, by statutory enactment in
this state, the common-law rule of fellow servant has been modified, and the common-law
rule of contributory negligence has been superseded by statutory rule, which is more or less
properly termed the rule of relative or comparative negligence. (Sections 5649 and 5651,
Revised Laws; Lawson v. Halifax, 36 Nev. 596, 135 Pac. 611.)
While many of the authorities relied upon by counsel for appellant would sustain his
contention in jurisdictions where the common-law rule of fellow servant prevails, they are not
applicable under statute such as ours. In other cases relied upon by appellant, the statement of
the facts discloses that the party injured was a machine driller following himself with no
intervening shift, and had personal knowledge that one or more of the holes which he himself
had charged had failed to explode. These cases are not analogous to the one at bar, for the
reason that the record here discloses that the respondent worked alternate shifts, and that it
was his duty, in the course of his employment, to set up his machine and drill immediately
following the explosion of a round of holes drilled and charged by the preceding shift, and
hence could have no personal knowledge of the failure of any one of the holes to explode.
There is a substantial conflict in the testimony as to whether or not the respondent was
warned, or had any notice, that the preceding shift had left an unexploded hole. In fact, the
record strongly bears out the contention of respondent that he had no notice.
It appears to be almost conclusively established that the appellant company had no regular
system whereby notice of unexploded holes were bulletined or reported by the off-going
shift.
notice of unexploded holes were bulletined or reported by the off-going shift. Whatever may
be said as to dangers incident to the employment of mining, however forceful it may be
contended that missed holes are frequent occurrences in mining operations, and that such is
known to the average miner, it cannot, in our judgment, be successfully argued that in modern
mining operations, where one group of men follow and take up the work of a previous group,
they should assume the risks attendant upon latent or immediate dangers left by those who
had previously been engaged in prosecuting the work at the same place. This is especially true
in view of modern mining appliances, methods, and regulations. However diligent the servant
should be, however painstaking in looking out and caring for his own safety, he should not be
expected to assume either the mistakes of those who preceded him in the same vocation, or
their failure to carry out the work in the usual and customary manner. Especially is this true in
the case of a missed hole left by a previous shift, hidden and obscure as it would necessarily
be. Where the oncoming shift receives no warning or notice of its existence, they could not,
in reason, assume the risk of a danger which, under ordinary circumstances, they could not
expect to exist.
[6] Reasonable care and reasonable diligence in securing his safety is, of course, required
on the part of a miner, to the end that he shall not, by his own wilful negligence, bring about
his own destruction or his own injury, but, when a hidden danger is placed by others over
whom he has no control, and from whom he may receive no warning or notice, in a place
where he is to perform his services, he should not be required to assume the risk thereof. As
was stated in the case of McMillan v. North Star M. Co., 32 Wash. 579, 73 Pac. 685, 98 Am.
St. Rep. 908: Dangers arising from a missing blast cannot be classified with dangers which
are incidental to nature's hidden forces, and which cannot be known or foreseen by human
prescience.
If the respondent in this case had belonged to the shift on which one of the round of holes
charged had failed to explode, he would necessarily be charged with notice of such danger,
and, under such conditions, he might be held to assume the risk if he returned to the place and
drilled into the unexploded hole; but, belonging, as he did, to another group of men, he could
not be expected to assume the risk of dangers hidden and unusual, arising from an
unexploded hole, being in no position from which he could have actual knowledge of such
danger, and receiving no notice from persons having such knowledge.
[7] Under such conditions and following the rule that the master is bound to furnish a
reasonably safe place in which for the servant to perform his duty, and is bound to throw
about the servant reasonable protection, it became the positive duty of the master to provide
either reasonable means, or, at least, reasonable methods to notify the servant of the extra
hazard which he was about to encounter, where an unexploded hole was left in the very place
where the servant was bound to perform his services.
From the record in this case, it is disclosed that it is customary in some mines, and a
positive rule in others, that the off-going shift shall give notice of missed holes by posting on
a blackboard or by other methods. The object and natural effect of such rules or customs is to
give notice of an unusual danger caused by the presence of missed holes in the place where
the oncoming shift is about to work. It serves as a warning to those who are about to enter the
place in order that they may use reasonable diligence and extra precaution to determine the
location of the missed holes and to guard against the dangers. It appears in this case no such
rule was prescribed and no such custom adhered to. The miner who enters the workings
unaware of this unusual danger cannot, in reason, be said to assume this additional risk.
(Shannon v. Consol., etc., 24 Wash. 119, 64 Pac. 169; McMillan v. North Star, 32 Wash.
McMillan v. North Star, 32 Wash. 579, 73 Pac. 685, 98 Am. St. Rep. 908; Polaski v.
Pittsburg, 134 Wis. 259, 114 N. W. 437, 14 L. R. A. n. s. 952.)
[8] The appellant in this case, by its pleadings, set up a release as having been signed by
respondent subsequent to the accident and at a time at which he was being treated by
specialists in the city of San Francisco. This release, in the form of a signed instrument, was
introduced in evidence in behalf of the appellant. It is our judgment that, in view of the
substantial conflict of evidence surrounding the signing of this instrument, the jury was
warranted in finding, as it did by its general verdict, that the respondent should not be bound
by the release. The evidence tended to establish that the release was signed in the office of
Mr. Jussen, the general superintendent of the appellant company, in the city of San Francisco;
that there were present at the time of the signing Mr. Jussen, the superintendent, and a
representative of a casualty company; that the respondent was alone, although it was
established by the evidence brought out on cross-examination of respondent's witnesses, and
also by the direct evidence of appellant's witnesses, that in all business transactions, other
than that of the signing of this instrument, respondent had transacted business by and through
is wife. Moreover, it is established that, at the time of the signing of this instrument, the
respondent could not read, and that his hearing was materially impaired by reason of the
injuries previously sustained. Notwithstanding the fact that the representatives of the
appellant company had on former occasions dealt with the respondent by and through his
wife in all matters pertaining to his injuries and treatment, on this particular occasion it
appears that Mr. Jussen, the superintendent of the company, called the respondent, Peterson,
to his office in the absence of Peterson's wife, and requested him to sign an instrument,
which, according to the testimony of Mr. Jussen and Mr. Lloyd, had been prepared in the
office of the casualty company prior to the meeting at which the respondent signed the
same, and was prepared by the representative of the casualty company prior to any
consultation or meeting with respondent.
respondent signed the same, and was prepared by the representative of the casualty company
prior to any consultation or meeting with respondent.
[9] It appears from the record in this case that the respondent, after being treated in the
hospital in San Francisco for the injuries sustained, returned to Blair, Nevada, on or about the
3d day of September, 1911, and continued his employment with the respondent company, and
that he was assigned to a position running a compressor and continued in such employment
until the middle of April, 1912.
There are many assignments of error contended for by appellant in this case applicable to
the rulings of the court made as to the admissibility of testimony. In view of the fact that it is
our judgment that this case must be reversed by reason of a ruling of the trial court hereafter
discussed, we shall take up but one of these assignments.
During the course of the trial, the witness Meyers was produced on behalf of the appellant,
and the proceedings applicable to appellant's assignment No. 25 are as follows:
Q. (By Mr. Platt)Did you every have a conversation with Mr. Peterson at any time
subsequent to the accident? A. I talked to him about it afterwards; yes.
Q. And where was that conversation? A. In the compressor room.
Q. Will you please tell us where, as near as you can remember? A. By the stove there.
Q. About what time was it? A. Along in the evening, probably half-past 7 or 8 o'clock.
Q. In what month, day of the month, as near as you remember? A. I think it was in
September, some time; I don't remember.
Q. Of what year? A. 1911.
Q. And what was Mr. Peterson doing in the compressor room at that time? A. Running
the compressor.
Q. What was that conversation?
Mr. HairstonI will ask what his purpose is. Do not know whether it is relevant or not.
Mr. PlattThe purpose of this conversation is to show that Mr.
that Mr. Peterson, by his own declaration, did not hold Mr. Meyers or the defendant company
liable for this accident.
Mr. HairstonObject on the ground it is immaterial, irrelevant, and incompetent, and has
nothing to do with this cause of action.
Mr. PlattI would like to make the offer a little more specific. We make this offer for the
following reasons: First, to show that this action was instituted in bad faith, with the
knowledge upon the part of the plaintiff, when it was instituted, that he himself knew that Mr.
Meyers, the shift boss, and the defendant company was not responsible for the injury and that
he, himself, was responsible; second, we offer it for the purpose of contradicting any manner
of evidence or imputed evidence of the negligence of the defendant company, and in
sustaining the contention of the defendant's answer that the alleged injury was not caused by
and through the contributory negligence of the defendant; and we offer it, in the third
instance, to contradict and impeach the testimony of the plaintiff's witnesses tending to show
negligence upon the part of the defendant company. We offer it as a part of the res gestae of
this action. We offer it as a declaration made by the plaintiff himself to an employee of the
company, which employee was engaged as a shift boss in the employ of the defendant
company at the time of the accident, and which declaration contradicts flatly the declaration
set up in the complaint in this action. We introduce it for the further reason that it is a
complete and adequate defense to this action. That is why we offer it.
Mr. MillerArgues.
Mr. PlattI don't desire to argue it; I will take a ruling on it.
Mr. HairstonArgues.
The CourtThe offer is denied.
Mr. PlattException upon the grounds stated in the offer, without repeating the grounds
separately and distinctly.
Q. Now, Mr. Meyers, did you have a conversation with Mr. Peterson in the month of
September, 1911, in which he stated to you that he recognized that you or the company
were not responsible for that accident?
which he stated to you that he recognized that you or the company were not responsible for
that accident?
Mr. HairstonObject to that as leading, suggestive, and incompetent.
Mr. PlattIf the court please, we desire the record preserved by asking a direct question
in support substantially of the offer we made.
Mr. PlattTake an exception on the grounds stated in the original offer.
Q. Now, in order, if the court please, that I may get a ruling on the question directly in
relation to the ruling on the offer we have made, I desire to ask this man: Mr. Meyers, state
whether or not you had a conversation with Mr. Peterson concerning the subject-matter of
this action at any time subsequent to the time of the accident.
Mr. MillerObject.
The CourtI will allow that question.
Q. Just answer the question Yes' or No.' A. Yes, sir.
Q. When was that conversation?
Mr. MillerObject; incompetent, irrelevant, and immaterial.
Mr. PlattTake your honor's ruling, if the court please. We made the offer, and we want
to get a ruling of the court now. We desire to ask the question under the objection of counsel,
in order that we may get the ruling on the question we ask.
Mr. MillerSame objection; irrelevant, incompetent, and immaterial.
The CourtSustain the objection. When you state what is the purport of the
conversation.
Mr. PlattI gave your honor the purport of the conversation.
Mr. PlattWe ask an exception upon the grounds stated in the offer, which we don't
desire to repeat, and which we will consider now repeated in haec verba.
Mr. MillerAll right.
Mr. MartinsonAnd on the further ground that the purportedthat the questions and the
offer made would indicate that there was an admission on the part of the plaintiff to the same
effect, going to the merits of this controversy.
The offer of evidence, as indicated by the record, and as declared by counsel for appellant
in his statement to the trial court, was that of a declaration against interest, made by
respondent to the witness Peterson. This was clearly indicated, in our judgment, by the
statement made by counsel, wherein he set forth to the trial court the reasons upon which he
based the offer, and indicated thereby the nature of the answer which he expected from the
witness; the witness having already testified that a conversation had taken place.
[10] The offer of the testimony made by appellant in the court below was clearly based
upon the rule that whatever a party voluntarily admits to be true, though the admission be
contrary to his interests, may reasonably be taken for the truth. Where a man voluntarily
admits a fact, which fact and which admission is contrary to his interests, ordinary motives
that sway or form human conduct suggests belief in his utterances. Such declarations or
utterances, although made outside of the direct proceedings, and without the sanction of an
oath, are nevertheless sufficient, when the proper foundation is laid for their admission, to
imply a reasonable presumption of their truthat least until there is a showing to the
contrary.
In the case under consideration, the respondent, by his pleadings, alleged the negligence of
the plaintiff company, and by his own testimony, and by the testimony of witnesses offered in
behalf of his contention, circumstances were related tending to establish the fact that the
accident was caused by reason of the negligence of the appellant. The issues were squarely
joined in this case on the question of negligence. It was the province of appellant, under the
pleadings in the case, and in view of the issues, to disprove negligence or liability for the
accident out of which respondent received the injuries.
view of the issues, to disprove negligence or liability for the accident out of which respondent
received the injuries. Any voluntary statement that respondent might have made subsequent
to the accident as to the cause of the accident, or as to the agencies that brought about the
accident, or as to his own responsibility or acts in bringing about the accident, if such were
made, might be produced by and from the party or parties to whom such utterances were
made, on behalf of the contention of appellant that the accident was not brought about by its
negligence.
Speaking upon this subject, Professor Wigmore in his work on Evidence says: Just as a
witness's testimony is discredited when it appears that on another occasion he has made a
statement inconsistent with that testimony, so also the party is discredited when it appears
that on some other occasion he has made a statement inconsistent with his present claim. This
is the simple theory upon which a party's admissionsof the informal sort, which might
better be termed quasi admissions'are every day received in evidence on behalf of his
opponent. The witness speaks in court through his testimony only, and hence his testimony
forms the sole basis upon which the inconsistency of his other statement is predicated. But
the party, whether he himself takes the stand or not, speaks always through his pleadings, and
through the testimony of his witnesses put forward to support his pleadings, hence the basis
upon which may be predicted a discrediting inconsistency on his part includes the whole
range of facts asserted in his pleadings and in the testimony relied on by him. Thus, in effect,
and broadly, anything said by the party may be used against him as an admission, providing
it exhibits the quality of inconsistency with the facts now asserted by him in pleadings or in
testimony. (Wigmore on Evidence, vol. 2, sec. 1048; Jones on Evidence, sec. 235; Ruling
Case Law, vol. 1, p. 468.)
Admissions of a party against his interest are competent in negligence cases, as in other
cases," says Mr.
competent in negligence cases, as in other cases, says Mr. Thompson in his Commentaries
on the Law of Negligence, and this same declaration is indorsed in Elliott's Treatise on the
Law of Evidence. (Thompson's Commentaries on the Law of Negligence, vol. 6, sec. 7738;
Elliott on Evidence, vol. 3, sec. 2510; Brown v. Calumet River, 125 Ill. 600, 18 N. E. 283;
Welti v. Cohen, 157 App. Div. 65, 141 N. Y. Supp. 670; Smith v. Smith, 140 N. W. 659;
Nirsley v. Brulaker, 192 Pa. 388, 43 Atl. 967.)
In the case of Helman v. Pittsburg Co., 58 Ohio St. 400, 50 N. E. 986, 41 L. R. A. 860, the
Supreme Court of Ohio, in passing upon this question, said: The defendant, therefore, has
the right to introduce any evidence which tends to weaken or disprove the facts necessary to
be established to make out the plaintiff's case; i. e., the facts constituting the conditions upon
which the action is given by the statute. If death had not ensued, the deceased could not
recover damages for his injuries, if it should be established on the trial that his injuries were
caused by his own carelessness or negligence; and his statements after the injury, and while in
his right mind, tending to show that the injury was caused by his own negligence and
carelessness, would be good evidence against him in an action brought in his own behalf
during his lifetime.
[11] The voluntary declaration or statement of a person injured, at any time after the
accident, is proper evidence to go to the jury, and, so far as it may be treated as an admission,
it should be considered in connection with all the other circumstances in the case, and in the
light of all the circumstances under which it is given. Its weight and significance is for the
jury. (Perigo v. C., R. I. & P., 55 Iowa, 326, 7 N. W. 627; Sterling v. DeLaune, 47 Tex. Civ.
App. 470, 105 S. W. 1169.)
In the case of Walker v. Brantner, 59 Kan. 117, 52 Pac. 80, 68 Am. St. Rep. 344, the
superintendent of the railroad on which deceased received his injuries was called as a witness
for the defendant company, and stated, among other things, that he had a talk with Brantner,
the deceased.
the deceased. He was then asked the question: I will ask you what he said with reference to
what he did about looking for an engine on the Frisco after he had stopped his engine and
whistled? This question was objected to by plaintiff, on the ground that it was incompetent.
This objection was sustained, and the company offered to prove certain statements made
against the interest of the deceased subsequent to the accident. The objection to the offer was
sustained, and the testimony excluded. The Supreme Court of Kansas, in passing upon the
question, said: It may be that some of the statements which the defendant claimed it would
prove were in the nature of expressions of opinion, or deductions from other facts; yet, being
the statements of Brantner (the deceased) with reference to the occurrence, they were
admissible as declarations against interest. At the time the statements were made, Brantner
alone had a cause of action against the railroad company for the injury.
In the case of Gulzoni v. Tyler, 64 Cal. 334, 30 Pac. 981, the Supreme Court of California
said: The evidence of what the plaintiff said when asked whether he blamed anybody on the
boat should not have been stricken out. Evidence of what he said in regard to the occurrence
was admissible for the defense. If he expressed an opinion as to who was to blame, the
defendants were entitled to have the benefit of it.
In the case under consideration, the question propounded to the witness Meyers called for
a statement as to the conversation between the witness and the plaintiff, Peterson. Counsel for
appellant, in his offer and statement made to the trial court, set forth, summarily at least, what
he expected to prove by the witness. It was to the effect that the plaintiff had expressed the
knowledge to the witness Meyers that the defendant company was not responsible for his
injuries, and, moreover, that he had expressed himself to the witness Meyers to the effect that
he himself was responsible. It was offered by the appellant as a declaration made by the
plaintiff himself against his own interest, at a time subsequent to the commencement of
the action, and while he was in the employ of the appellant company.
plaintiff himself against his own interest, at a time subsequent to the commencement of the
action, and while he was in the employ of the appellant company. It might be contended that
the statement, if such was testified to by the witness Meyers, would have little or no effect
with the jury, but its weight and effect are matters upon which we have no right to pass. The
jurors alone were the ones to weigh the evidence for whatever it might have been worth, but,
whatever its weight might have been, or whatever effect it might have had, the defendant was
entitled to it. If at that time the plaintiff, respondent herein, voluntarily made statements
contrary to the position taken by him at the trial and contrary to the declarations in the
complaint, or contrary to the theory of the plaintiff's case, the defendant was entitled to offer
such statements or declarations in evidence, where the proper foundation was laid.
In the case of Holman v. Boston Co., 20 Colo. 7, 36 Pac. 797, it appears from the
statement of facts, as set forth in the opinion, that an offer very similar to the offer made to
the trial court in this case was made by the defendant, and the Supreme Court of Colorado,
speaking through Mr. Chief Justice Hayt, said: The evidence offered was proper, and should
have been admitted. The witness was a party plaintiff to the action and his admissions were
competent evidence against him. As the defendant was not permitted to testify in reference
thereto, we must assume that he would, but for the erroneous ruling of the court, have
testified that this plaintiff, at the time, admitted that the fire occurred without fault on the part
of defendant. Testimony of such an admission was proper as substantive evidence, and should
have been allowed to go to the jury. * * * And we are unable to say that the verdict upon the
last trial might not have been different had the rejected evidence been admitted. Much or little
weight might have been given it in the discretion of the jury, or its effect might have been
entirely overcome by other evidence; nevertheless it was competent, and should have been
submitted to the jury."
to the jury. (Grand Lodge v. Taylor, 24 Colo. App. 106, 131 Pac. 783.)
This court, speaking through Mr. Chief Justice Lewis in the case of Rollins v. Strout, 6
Nev. 150, speaking of admissions in general, said: The general rule is that, when the proof of
acts done by a person is admissible, any declarations accompanying them which tend to
explain such acts or the motives controlling them are likewise admissible. The rule is
certainly not confined to such declarations as may be made against the interest of the person
making them. Such declarations are received under another rule and for different reasons.
When made against interest, they are received even when not accompanying such acts.
While the decision in the Rollins-Strout case, supra, was not strictly in point as being
applicable to the case under consideration, nevertheless this court, in the last sentence of the
above quotation, indorsed the general rule applicable to admissibility of admissions against
interest, and, while the court in that case did not go into the subject at length, it being one not
essential to the decision, the rule applicable to the admissibility of evidence of that character
was asserted, even though it might be considered in the form of obiter dicta.
[12-13] The offer in this case, made by the appellant in the trial court, being that of a
statement of the party plaintiff against his own interest is admissible, upon the principle that
every prior statement of a party to an action exhibiting any inconsistency with his present
claim, or theory upon which he presumes to maintain his case, tends to throw doubt upon it;
this regardless of whether, at the time he was speaking, he made the utterances in his own
favor or against his own interest. It has been asserted on authority that an admission against
interest is equivalent to affirmative testimony for the party offering it. This may be true only
as to admissions which presume to state facts against the declarant's interest at the time of
stating them. But, whatever may be the weight or significance to be given to admissions
against interest, or declarations inconsistent with the contention of the party who makes
them, it is nevertheless a rule that, when a party to a civil action has made an admission
of fact material to the issue, it is admissible against him.
to admissions against interest, or declarations inconsistent with the contention of the party
who makes them, it is nevertheless a rule that, when a party to a civil action has made an
admission of fact material to the issue, it is admissible against him. The weight and
consideration to be given to such admission or declaration, whether great or nil, is for the
jury. (Jones on Evidence, 2d ed. c. 9.)
While it is true that courts generally hold that admissions or declarations against interest
are not conclusive as to the effect of what the declarant stated, yet such admissions should be
considered in connection with the circumstances, and given such weight as they are entitled to
in deciding whether or not the party spoke with mature consideration and in regard to his
legal rights, or whether he meant the defendant was not to blame for any lawful intention to
injure him. (Cooper v. Central Rd., 44 Iowa, 134; Central Rd. v. Mooseley, 112 Ga. 914, 38
S. E. 350.)
While it is true in this case that, if the respondent did make a declaration against his
interest or against his general position, as assumed in his pleadings and by his evidence in the
trial, the jury would not have been bound to find that the evidence in that respect was
conclusive of his negligence. But, however this may be, the evidence, if such there was,
should have gone to the jury. (Martinson v. National Co., 166 Mass. 4, 43 N. E. 513; Copley
v. Union Pacific, 26 Utah, 361, 73 Pac. 517; Binequicz v. Hagland, 103 Minn. 297, 115 N.
W. 271, 15 L. R. A. n. s. 1096, 14 Ann. Cas. 225.)
Counsel for respondent contend that the offer was not in proper form to constitute a good
tender of evidence, and they state: This is not in proper form to constitute a good tender of
evidence. To make it a good tender, it ought to have stated the facts offered to be proved, and
not to state the legal effect of the facts offered to be proved. The alleged tender was lacking in
not being specific, it was too general in character, and it would be difficult, if not impossible,
for the court to understand what evidence was offered."
difficult, if not impossible, for the court to understand what evidence was offered.
[14] As will appear from the record, however, the trial court did not sustain the objection
on this theory. It is manifest that the trial court sustained the objection, not by reason of the
form of the offer, or the manner in which the offer was made, but rather by reason of the
purpose of the offer. The record, as heretofore quoted, discloses that the attorney for appellant
stated to the court:
Take your honor's ruling, if the court please. We made the offer, and we want to get a
ruling of the court now. We desire to ask the question under the objection of counsel, in order
that we may get a ruling on the question we asked.
Mr. MillerSame objection; irrelevant, incompetent, and immaterial.
The CourtSustain the objection. When you state what is the purport of the
conversation.
From this it will appear that the court sustained the objection of counsel for respondent not
by reason of the form of the offer, but by reason of the intendment of the offer, thereby
holding that its purpose was subject to the objection interposed. From this it further appears
that the court thoroughly understood the object and purpose of the offer, and from the
statement made by counsel for appellant to the trial courts as to the scope and substance of
the offer, and the purpose and object of the same, it is manifest that the court understood what
evidence was offered, and ruled it out by reason of its purpose.
Respondent further contends that it was not error on the part of the court to rule against the
admission of the offered evidence, inasmuch as it was not shown definitely and specifically to
be pertinent to the issues involved. To this it may be said that the major issue involved in this
case was the negligence of the appellant company, and any element of competent evidence
going directly to that issue was admissible, where a proper foundation was laid for its
admission.
to that issue was admissible, where a proper foundation was laid for its admission. Counsel
for respondent raise no question in their objection to the foundation laid for the admission of
the testimony. Moreover, its our judgment that the foundation was properly laid and the offer
was made in good season.
[15] Unless an error complained of is such as to substantially affect the rights of the
complaining party to such an extent that it might reasonably contend and assert that, were it
not for the error complained of, a different result might reasonably have been expected, it
would be harmless.
[16] Where the error complained of was one having to do with the admissibility or
nonadmissibility of testimony, and especially where the testimony goes directly to the issue or
issues in the case, its weight and significance being for the jury to determine, a ruling upon
that point is so vital that an error made in that respect is, in our judgment, one of sufficient
importance and consequence to demand reversal.
The judgment and order appealed from should be reversed, and the cause remanded for a
new trial.
It is so ordered.
____________
37 Nev. 139, 139 (1914) Ferro v. Bargo Mining Co.
[No. 2099]
LUIGI FERRO, JOHN DIVECCHIA, P. VIRGILIO, and P. MARCO, Appellants, v. BARGO
MINING AND MILLING COMPANY (a Corporation), Respondent.
[140 Pac. 527]
1. LiensObject of Statute.
The object of the lien law is to secure payment to those who perform labor upon mining property, or
who perform labor upon or furnish material for the construction of other works specified in the statute,
for such labor performed or material furnished.
2. StatutesConstruction.
In construing or applying the provisions of any statute, the purpose or object of the statute should ever
be kept in mind, and a construction or application should be avoided which sacrifices substance to a mere
matter of form.
3. MinesConstruction of Lien LawMines and Minerals.
The lien law for securing payment for labor on mining property is not to be construed strictly, as in
derogation of common law, but liberally, as remedial.
4. Mines and MineralsLien ClaimsJoinder of Claims.
The statute giving right of lien to both contractors and laborers, a lien claim against mining property
is not void for joinder of a claim of lien under a contract of employment by the day with one under a
contract of employment for a specified amount of work, at an agreed price per foot; the work being
continuous and of the same character under both contracts.
5. Mines and MineralsLien ClaimsParties.
Where under a joint contract of two for work on mining property, half the contract price is to be paid
each severally, they need not join in a lien claim, but one of them may alone file such a claim for half the
amount.
Judge.
Action by Luigi Ferro and others against the Bargo Mining and Milling Company. From a
judgment of dismissal as to plaintiff Ferro, he appeals. Reversed and remanded.
Dixon & Miller, for Appellant.
Massey & Springmeyer, for Respondent.
Appellant and several other lien claimants joined in an action to foreclose certain labor
liens filed upon certain mining claims, the property of respondent. A demurrer was sustained
as to the cause of action of the appellant, Ferro, and as to him judgment of dismissal was
entered. From such judgment Ferro has appealed.
So much of the complaint, as involves the questions presented on appeal, reads as follows:
That on or about February 25, 1910, C. Virgilio, as the manager of said corporation, being
duly authorized thereto, employed claimant as a miner to work in, on, and about said claims,
for a daily wage of $5, payable monthly; that under said contract of employment plaintiff
during the months of May, June, July, and August, 1910, worked for eighty-seven days, such
labor being of the total value of $435; that plaintiff received during said months board from
said corporation of the value of $87; that no other part of said sum has been paid, and that
there is now due him a balance of $348 thereon; that on or about the month of August, 1910,
said defendant employed C. Virgilio and plaintiff to sink a certain shaft on said Bargo claim a
depth of eighty-nine feet, agreeing to pay all expenses of sinking same, including labor and
materials, and agreeing upon the completion thereof to pay to plaintiff and said Virgilio the
sum of $25 per foot after deducting said expenses, half of said balance to be paid to each; that
under said contract plaintiff and said Virgilio caused said shaft to be sunk said distance; that
after deducting said expenses there was due from said defendant to plaintiff, as his half of
said balance, the sum of $540, no part of which has been paid, and all of which is now and
has been, since the completion of said work, due and payable; that there were no terms or
conditions to said contracts of employment other than those hereinabove set forth; that the
work and services performed by plaintiff under said contracts was the same in character under
each contract, and constituted one continuous transaction; that there were not, at the time of
filing the lien hereinafter mentioned, and are not now, any just credits or offsets against
the sum of $SSS due plaintiff under said contracts; and that said work and services were
all performed on that part of said mine known as the 'Bargo' claim, said work being in
furtherance of a common system tending to the uniform development of the other
contiguous claims constituting said mine, as aforesaid; that prior to the expiration of fifty
days from the time when plaintiff last performed labor on said mine under said contracts
of employment, to wit, on December 13, 1910, plaintiff made and executed his claim of
lien upon said mine * * * for the said balance of $SSS, then due and owing under said
contracts, and, after duly verifying same, caused said claim of lien to be recorded on said
13th day of December, 1910, in the office of the county recorder of Washoe County, * * *
a copy of which claim of lien is hereto attached * * * and made a part of this complaint."
lien hereinafter mentioned, and are not now, any just credits or offsets against the sum of
$888 due plaintiff under said contracts; and that said work and services were all performed on
that part of said mine known as the Bargo' claim, said work being in furtherance of a
common system tending to the uniform development of the other contiguous claims
constituting said mine, as aforesaid; that prior to the expiration of fifty days from the time
when plaintiff last performed labor on said mine under said contracts of employment, to wit,
on December 13, 1910, plaintiff made and executed his claim of lien upon said mine * * * for
the said balance of $888, then due and owing under said contracts, and, after duly verifying
same, caused said claim of lien to be recorded on said 13th day of December, 1910, in the
office of the county recorder of Washoe County, * * * a copy of which claim of lien is hereto
attached * * * and made a part of this complaint. The copy of the claim of lien filed,
attached to the complaint as an exhibit, does not vary, in any substantial particular, from the
allegations in the complaint as above quoted. The respondent demurred for want of sufficient
facts, for misjoinder of causes of action, and the uniting in one cause of action of two separate
causes of action, in that the separate contract with Ferro had been joined with the contract
with Ferro and Virgilio, for defect of parties in the nonjoinder of Virgilio, and for the
insufficiency of the lien in joining the Ferro contract.
It is the contention of respondent that the claim of lien is fatally defective, because it is
based on two contracts, one an individual contract of employment of appellant alone, the
other, a joint contract of appellant and another as original contractors; that hence there
cannot be a tacking of such contracts by Ferro.
[1] The object of the lien law is to secure payment to those who perform labor upon
mining property, or who perform labor upon or furnish material in the construction of any
building or other works, specified in the statutes, for such labor performed or material
furnished.
[2] In construing or applying the provisions of any statute, the purpose or object of the
statute should ever be kept in mind, and a construction or application should be avoided
which sacrifices substance to a mere matter of form.
[3] Some of the earlier decisions construing or applying lien statutes were inclined to give
a strict construction or application, upon the theory that such statutes were in derogation of
the common law, a strict construction being the general rule in such character of statutes.
These statutes are now regarded as remedial laws, and are given a liberal construction.
(Skyrme v. Occidental M. & M. Co., 8 Nev. 220; Hunter v. Truckee Lodge, 14 Nev. 28;
Malter v. Falcon M. Co., 18 Nev. 212, 2 Pac. 50; Maynard v. Ivey, 21 Nev. 244, 29 Pac.
1090; Porteous Co. v. Fee, 29 Nev. 380, 91 Pac. 135; Tonopah L. Co. v. Nevada Am. Co., 30
Nev. 456, 97 Pac. 636; Lamb v. Goldfield L. M. Co., 37 Nev. 9, 138 Pac. 902.)
As said by this court in the recent case of Lamb v. Goldfield L. M. Co., supra, while there
must be a substantial compliance with the essential requisites of the statute, such pleadings
and notices as the law requires should be liberally construed in order that justice might be
promoted and the desired object might be effected.
[4] There is no contention that appellant did not have, under the statute, the right of lien
security for all that is alleged to be due him for labor performed, but it is contended that he
has lost this valuable right, not because he failed to file a lien, but because he has improperly
joined two lien rights and there has been a nonjoinder of parties in one of the lien claims. We
think these objections ought not to be well taken.
In the Skyrme case, supra, the court said: The manner in which the work was conducted
in the Occidental mine is quite common in many of the mines of this state. In the prosecution
of the work it is necessary to run tunnels and crosscuts, and sink winzes; and while, as a
general rule, the laborers, are employed by the day, it is often the case that some of them will
take a contract to do this kind of work at a stipulated price per foot, and within a few days
after their contracts are completed either go to work by the day, or take other contracts in
the same mine.
kind of work at a stipulated price per foot, and within a few days after their contracts are
completed either go to work by the day, or take other contracts in the same mine. It would be
a harsh and unreasonable rule of construction in these cases to hold that the statute required
separate liens to be filed for each contract to enable the laborer to secure his wages. * * * In
the case at bar there was not in reality any new employment. The character of work was the
same, viz., labor and work done on the mine. The amount to be paid varied with the peculiar
character of the work at different times. We have carefully considered all the testimony, and
are satisfied that there was not in the eye of the law any such stoppage or change of work as
created independent jobs or contracts requiring the filing of separate liens. The miners
worked under the direction of the foreman of the Occidental M. & M. Co., as well under the
contracts as when working by the day. We think it was proper to include the work done under
the contracts with the work done by the day, and to treat the employment as one continuous
transaction for the purpose of ascertaining the time within which the liens should be filed.
(Singerly v. Doerr, 62 Pa. 12; Fitch v. Baker, 23 Conn. 567.)
We think the Skyrme case is authority for holding that the lien claim is not void because of
a joinder of a claim of lien under a contract of employment by the day with a contract of
employment for a specified amount of work at an agreed price per foot, less certain
deductions, the work being continuous and of the same character under both contracts. See,
also, Capron v. Strout, 11 Nev. 304. To hold otherwise, would, as we have above stated, be a
sacrifice of the substance for a mere matter of form. While the statute in force at the time the
lien claim in question was filed provided a longer time in which an original contractor
might file his claim of lien than that allowed other lien claimants, there is nothing in the
statute prohibiting the joining in one lien claim of rights of lien as an original contractor and
for labor as an employee, where the same party has both such rights of lien.
lien. Where, as in this case, the character of the work performed was the same and the work
was continuous, fine distinctions ought not to be drawn as to the character of the two
contracts, where, in substance, they were the same, when to do so would defeat a substantial
right. The cases of Malcomson v. Wappoo Mills (C. C.) 85 Fed. 907, and Vane v. Newcombe,
132 U. S. 220, 10 Sup. Ct. 60, 33 L. Ed. 310, cited by respondent, are not in point, for those
cases considered statutes giving liens to laborers only, and not to contractors. Our statutes
give rights of lien both to contractors and laborers, and the only distinction ever made was as
to the time in which a lien might be filed, and this distinction was practically abolished by the
amendment of 1911. (Rev. Laws, sec. 2217.)
[5] The contention that the lien should be held invalid because Virgilio should have been
joined as a necessary party in the lien claim and in the suit based on the claim is without
substantial merit. Under the allegations in the complaint, while the work was to be performed
jointly, when the contract was completed, one-half of the contract price per foot, after
deducting all expenses, was to be paid to each severally. So far as the validity of the lien
claim in question is concerned, we think a court would not be justified in holding the same
invalid because the contract was joint in character. We do not wish to be understood as
holding that in every joint contract it is unnecessary to join all the parties in a lien claim.
There may be cases in which the substantial rights of a defendant would be injuriously
affected by such a holding. Such, however, is not this case.
Courts are established to do justice between litigants. Statutory provisions regulating
procedure are but aids to courts in the accomplishment of the purpose for which they were
created. Forms of procedure are convenient and necessary, and justice can best be
administered, in the great majority of cases, by requiring a substantial compliance with
established rules, but courts should always bear in mind that procedure is but a means unto an
end, and that end the doing of justice between parties litigant.
an end, and that end the doing of justice between parties litigant.
In the case at bar, Ferro, according to the complaint, performed labor of considerable value
upon the property of defendant. The statute gave a right of lien for the purpose of securing to
him payment for his services rendered, and made the property he had helped to develop liable
for the amount of his claim. He has substantially complied with the provisions of law in filing
his claim of lien. He is entitled to a liberal construction of the lien law. His right of lien
should not be defeated by technicalities which do not affect the substantial rights of the
defendant.
Judgment reversed and cause remanded.
____________
37 Nev. 145, 145 (1914) In Re Benites
[No. 2117]
In the Matter of the Application of FRANK BENITES for a Writ of Habeas Corpus.
[140 Pac. 436]
1. Crime Against NatureSodomyOffensesIndictment.
Rev. Laws, sec. 6459, punishing the infamous crime against nature either with man or beast,
includes all unnatural acts in whatever form or by whatever means they are perpetrated, and an indictment
charging that accused did unlawfully commit the infamous crime against nature with a man, stating the
manner of the act, was sufficient.
2. Crime Against NatureSodomyStatutesConstruction.
Rev. Laws, sec. 6459, punishing the infamous crime against nature, must be construed according to
the fair import of its terms, so that its objects may be effective.
Original proceeding. In the matter of the application of Frank Benites for a writ of habeas
corpus. Writ dismissed.
Thomas E. Kepner, for Petitioner.
Geo. B. Thatcher, Attorney-General, E. T. Patrick, Deputy Attorney-General, and William
Woodburn, Jr., District Attorney, for Respondent.
This is an original proceeding in habeas corpus. The petitioner, Frank Benites, as is
related in the petition, is now held by A. A. Burke, sheriff of Washoe County, by reason of
an information filed against petitioner by the district attorney of Washoe County, which
information is as follows: "William Woodburn, Jr., district attorney in and for the county
of Washoe, in the name and by the authority of the State of Nevada, informs the
above-entitled court that Frank Benites, the defendant above named, has committed a
felony, to wit, the infamous crime against nature, in the following manner: That said
defendant, on the 3d day of March, A. D. 1914, or thereabouts, and before the filing of this
information, at and within the county of Washoe, State of Nevada, did then and there
wilfully, unlawfully, and feloniously commit the infamous crime against nature with and
upon one,
* * * a male human being, then and there being, by then and there inserting and placing
his penis in the mouth of the said.
37 Nev. 145, 146 (1914) In Re Benites
petitioner, Frank Benites, as is related in the petition, is now held by A. A. Burke, sheriff of
Washoe County, by reason of an information filed against petitioner by the district attorney of
Washoe County, which information is as follows: William Woodburn, Jr., district attorney
in and for the county of Washoe, in the name and by the authority of the State of Nevada,
informs the above-entitled court that Frank Benites, the defendant above named, has
committed a felony, to wit, the infamous crime against nature, in the following manner: That
said defendant, on the 3d day of March, A. D. 1914, or thereabouts, and before the filing of
this information, at and within the county of Washoe, State of Nevada, did then and there
wilfully, unlawfully, and feloniously commit the infamous crime against nature with and
upon one,
* * * a male human being, then and there being, by then and there inserting and placing his
penis in the mouth of the said. * * * All of which is contrary to the form of the statute in such
case made and provided, and against the peace and dignity of the State of Nevada.
It is the contention of counsel for petitioner that the information in this case fails to state
facts sufficient to constitute a public offense under the statutes of Nevada. The statute
applicable to this offense, and the only statute in this state that has any bearing upon this
offense, is as follows: The infamous crime against nature, either with man or beast, shall
subject the offender to be punished by imprisonment in the state prison for a term not less
than five years, and which may extend to life. (Section 6459, Revised Laws.)
It is the contention of petitioner that the infamous crime against nature is synonymous with
sodomy as that crime was known and construed under the common law. In our judgment it is
scarcely necessary to determine whether or not the term infamous crime against nature is of
similar import or significance to the crime which, under the common law, was designated
sodomy. In 1 Hawkins's Pleas of the Crown, p. 357, speaking of the crime of sodomy, it is
stated: "All unnatural carnal copulation, whether with man or beast, seems to come under
the notion of sodomy, which was felony by the ancient common law, and punished
according to some authors with burning, according to others with burning alive."
37 Nev. 145, 147 (1914) In Re Benites
crime of sodomy, it is stated: All unnatural carnal copulation, whether with man or beast,
seems to come under the notion of sodomy, which was felony by the ancient common law,
and punished according to some authors with burning, according to others with burning
alive.
It must be observed in this respect that, even in the time in which this authority wrote, all
unnatural carnal copulations were embraced within the term and generally understood to be
sodomy.
[1] It is unnecessary in our judgment to determine whether or not our legislature, in
enacting the section above quoted, had in mind the common-law crime of sodomy. It is
sufficient, we believe, to say that the infamous crime against nature as mentioned by our
statute should be no less in its scope that that which was understood to be within the crime of
sodomy as designated by Hawkins in his Pleas of the Crown, wherein he states, All
unnatural carnal copulation seems to come under the notion of sodomy.
If our statute specifically mentioned or designated the crime sought to be reached as
sodomy, perhaps we would be bound by the understanding of the crime as described by that
word, or as that crime was construed in the earlier decisions. It must be observed, however,
that the statute did not limit or define the crime which it sought to punish by designating it as
sodomy, but rather sought to cover the entire field of unnatural acts of carnal copulation. In
other words, it is our judgment that section 6459 of our Revised Laws seeks to define and
punish acts of unnatural copulation in whatsoever form those acts may be perpetrated, and
without regard to the means or manner of perpetration.
Nature has provided in the male and female the organs for the reproduction of the species.
Any copulation by male with male, or by male with female, other than that copulation by and
through the organs provided by nature for the reproduction of the species, is an act against the
order of nature, and hence must of necessity be a crime against nature, inasmuch as it is an
act against nature's law.
37 Nev. 145, 148 (1914) In Re Benites
against nature, inasmuch as it is an act against nature's law.
[2] Counsel for petitioner refers to many decisions setting forth a view contrary to our
reasoning in this particular. It is true that writers upon the common law, and common-law
courts generally, hold that, to constitute sodomy the act must be in that part where sodomy is
usually committed; and were we limited by the words of our statute to the crime of sodomy,
as it was generally understood in the common-law courts, it is doubtful as to whether or not
we could construe it as embracing any other acts than those contemplated by the common-law
authorities. But our statute must be construed according to the fair import of its terms, and to
the end that its objects may be effected, and, with this in view, it is our judgment that it is not
unreasonable to assume that all unnatural acts of carnal copulation between man with man or
man with woman, where a penetration is effected into any opening of the body other than
those provided by nature for the reproduction of the species, are sufficiently contemplated and
embraced within the term the infamous crime against nature as set forth by our statute.
The method by which the act is alleged to have been performed, as set forth in the
information in this case, is as much an act against nature and against the laws of nature as was
the act generally conceded to be sodomy by the common-law writers and common-law courts.
As was said in the case of Honselman v. People, 168 Ill. 175, 48 N. E. 304: It is as much
against nature, in the sense of being unnatural and against the order of nature, as sodomy or
any bestial or unnatural copulation that can be conceived.
The Supreme Court of South Dakota, in the case of State v. Whitmarsh, 26 S. D. 426, 128
N. W. 580, in construing a statute somewhat similar to that of ours, said: It would be an
insult to the legislature which enacted our statute to hold that from the words of our statute it
appears it intended to allow the most heinous form of the crime against nature to go
unpunished simply because it was an unusual form of such crime."
37 Nev. 145, 149 (1914) In Re Benites
crime against nature to go unpunished simply because it was an unusual form of such crime.
In the case of Herring v. State, 119 Ga. 709, 46 S. E. 816, the Supreme Court said: After
much reflection we are satisfied that, if the baser form of the abominable and disgusting
crime against nature, i. e., by the mouth, had prevailed in the days of the early common law,
the courts of England could well have held that that form of the offense was included in the
current definition of the crime of sodomy. And no satisfactory reason occurs to us why the
lesser form of this crime against nature should be covered by our statute, and the greater
excluded, when both are committed in like unnatural manner, and when either might well be
spoken of and understood as being the abominable crime not fit to be named among
Christians.'
Without commenting upon the authorities relied upon by counsel for petitioner, we rather
concur in the reasoning and rule as set forth in the case of State v. Whitmarsh, supra, and as
asserted by the Supreme Court of the State of Oregon in the case of State v. Start, 65 Or. 178,
132 Pac. 512, 46 L. R. A. n. s. 266.
In our judgment the information sufficiently charges a crime under the statue wherein the
crime against nature is made a felony. It follows that the writ should not be perpetuated, but
should be dismissed.
It is so ordered.
____________
37 Nev. 150, 150 (1914) Schmitt v. Jenson
[No. 2086]
LIZZIE K. SCHMITT and JOHN SCHMITT, JR., as Executrix and Executor of the Last Will
and Testament of Edward Schmitt, Deceased, Respondents, v. CHARLOTTE E.
JENSON, sometimes known and called Charlotte Jenson and Scharlotte Jenson, as
Guardian of the Persons and Estates of Elwyn E. Dougherty, sometimes known and
called Elvyn E. Daughtery; Edith M. Dougherty, sometimes known and called Edith M.
Daughterty; Chester C. Dougherty, sometimes known and called Chester C. Daugherty,
and Thomas H. Dougherty, sometimes known and called Thomas H. Daugherty, Minors;
and Charlotte E. Jenson, sometimes known and called Charlotte Jenson and Sharlotte
Jenson, individually, and Elvyn E. Doughtery, sometimes known and called Elvyn E.
Daugherty, individually, and Edith M. Dougherty, sometimes known and called Edith M.
Daugherty, individually; John Doe, true name unknown; Richard Roe, true name
unknown; Jane Doe, true name unknown, and Samuel Poe, true name unknown,
Appellants.
[140 Pac. 518]
1. Guardian and WardCustody and Care of Ward's EstateCommunity
PropertyDivorce.
By a divorce decree and also by agreement of the parties, community property of husband and wifea
house and lotwas set aside for the use, support, maintenance, and education of the minor children.
Held, that the purposes of the trust included any disposition necessary for the support and education of the
children, and hence the execution of a mortgage by the guardian for $3,000 for the purpose of paying off a
prior mortgage and saving the property as a home for the children was within the purposes of the trust and
authorized.
Judge.
Action to foreclose mortgage by Lizzie K. Schmitt and John Schmitt, Jr., executrix and
executor, against Charlotte E.
Charlotte E. Jenson and others. From a judgment of foreclosure for plaintiffs, defendants
appeal. Affirmed.
Stoddard, Moore & Woodburn, for Appellants.
W. A. Massey, for Respondents.
By this appeal it is sought to have set aside a decree of foreclosure of a mortgage which
was executed under the following circumstances: On February 23, 1906, while the house and
lot covered by the mortgage belonged to Thomas Dougherty and Lottie E. Dougherty, his
wife, as community property, they entered into the following agreement relating thereto: It is
hereby stipulated and agreed by and between Lewers & Huskey, attorneys and agents for
Lottie E. Dougherty, and Thomas Dougherty, that in case suit is brought by the said Lottie E.
Dougherty against the said Thomas Dougherty, for a divorce from the said Thomas
Dougherty and the said suit is prosecuted to a final decree of divorce, then and in that case,
Lottie E. Dougherty and her attorneys, Lewers & Huskey, will have stated in and as part of
said decree of divorce, that the real property now belonging to the said Lottie E. Dougherty
and the said Thomas Dougherty, to wit, a cottage situated at the corner of Sixth and Ralston
Streets, in Reno, Nevada, and now occupied by the said Lottie E. Dougherty and her four
minor children, Elvin, Edith, Chester, and Thomas, shall be set aside for the sole and separate
use, support, maintenance, and education of the said minor children, and that the custody and
care of the said minor children shall be left and remain with the said Lottie E. Dougherty
during her good behavior and subject to change by order of the proper court at any time upon
a proper and sufficient reason therefor; and both parties hereto understand and agree that the
said decree of divorce shall also contain an order that the said Thomas Dougherty shall pay
off the mortgage now standing against the said property and leave the same, within a
reasonable time, clear of all incumbrances for said minor children.
leave the same, within a reasonable time, clear of all incumbrances for said minor children.
This stipulation is for the purpose and solely for the purpose of settling the rights of the
undersigned parties to the community property and to the custody of their said minor
children, in case a divorce is granted to the said Lottie E. Dougherty.
In a decree of the district court for Washoe County, dated the 6th day of June, 1906,
granting Lottie E. Dougherty a divorce from Thomas Dougherty, and referring to and
following the foregoing agreement, it was adjudged that the house and lot be set aside for the
use, support, maintenance, and education of the minor children of the parties named in the
agreement, and the household furniture belonging to the plaintiff and defendant was given to
Lottie E. Dougherty, the plaintiff in that action. The custody of the children was awarded to
the mother. At the time of the execution of this agreement and the rendition of the decree
dissolving the marriage and setting the real property over for the support, education, and
maintenance of the minor children, the property was subject to a mortgage which had been
executed on the 7th day of August, 1903, by Thomas and Lottie E. Dougherty to the Bank of
Nevada for $1,000 and interest. On the 12th day of October, 1907, Lottie E. Dougherty, for
the purpose of administering the property mentioned, under the supervision and direction of
the court, for the support, maintenance, and education of the minor children, was duly
appointed and qualified as guardian of their persons and estates. On the 24th day of March,
1908, upon petition and notice, for the purpose of preserving the property from foreclosure
and sale under the mortgage mentioned, which then remained unsatisfied, and for the purpose
of securing funds for the support and education of the minor children, she obtained an order
of the court directing her as guardian to remortgage the property for the sum of $3,000.
Pursuant to the direction of the court by that order, and for the purpose of securing funds to
preserve the property and secure money for the support, maintenance, and education of
the children, she borrowed $3,000, and to secure the payment thereof executed the
mortgage ordered foreclosed by the decree in this case.
preserve the property and secure money for the support, maintenance, and education of the
children, she borrowed $3,000, and to secure the payment thereof executed the mortgage
ordered foreclosed by the decree in this case. During the six years since the execution of this
mortgage, no part of the principal or interest has been paid.
For the appellants it is contended that the district court had no power to authorize the
guardian to borrow the $3,000 or to execute the mortgage, and that it is not enforceable
against the property of the wards because at the time it was executed there was no statute in
this state authorizing the guardian to mortgage or incumber real estate of the ward. Cases are
cited holding that a guardian has no power to make a mortgage on the ward's real estate
unless authority be conferred upon him by statute, upon his obtaining an order of the proper
court. If it be admitted that these decisions relate to property belonging to a ward through
inheritance, or otherwise unconditionally, they are inapplicable in this case because this
property did not so belong to these minors. As the community property of the parents, they
could sell it or mortgage it, as they had previously done, or could impress it with a trust which
might necessitate or authorize its sale or incumbrance by mortgage. It was legal and laudable
for the father and mother to provide that the property should be set over for the support,
maintenance, and education of the children, who had and acquired no right to it separate from
this trust condition.
The Revised Laws provide:
The court, in granting a divorce, shall make such disposition of, and provision for, the
children, as shall appear most expedient under all the circumstances, and most for the present
comfort and future well-being of such children. (Section 5840.)
In granting a divorce, the court shall also make such disposition of the property of the
parties as shall appear just and equitable, having regard to the respective merits of the parties,
and to the condition in which they will be left by such divorce, and to the party through whom
the property was acquired, and to the burdens imposed upon it, for the benefit of the
children."
the property was acquired, and to the burdens imposed upon it, for the benefit of the
children. (Section 5841.)
No one but the parents, as the owners of the community property, or the court, had any
power over the property at the time of the action for divorce; and the setting aside of the
property, whether considered as authorized by either or both the agreement of the parties or
the decree of the court, must be deemed conclusive for the purposes of the trust, which
included any disposition of the property necessary for the support and education of the
children. Consequently, the execution of the mortgage for $3,000 for the purpose of paying
off the prior mortgage for $1,000, and saving the property from foreclosure and sale under the
prior mortgage, so that it could be retained as a home for the children and additional money
secured for their support and education, was within the purposes of the trust, and authorized.
The decree of the district court is affirmed.
____________
37 Nev. 154, 154 (1914) Prosole v. Steamboat Canal Company
[No. 2104]
PALMIRA PROSOLE And LUIGI PROSOLE, Respondents, v. STEAMBOAT CANAL
[140 Pac. 720 and 144 Pac. 744]
1. Waters and WatercourseAppropriation for IrrigationStatutory
ProvisionsApplicability.
Stats. 1913, c. 140, making water for beneficial purposes appurtenant to the place of use, unless it
becomes impracticable to beneficially use water at the place, in which case the right may be severed and
transferred, and become appurtenant to another place, does not affect the rights acquired by one
obtaining, for several years prior to the act, water for irrigation from a water company engaged in selling
water for irrigation.
2. Waters and WatercoursesWater CompaniesObligations.
A company owning and operating an artificial waterway and diverting water from a natural stream
solely for gain by the sale of water to others, who actually apply it for irrigation, acquires no right to the
water except the right to dispose of it for a reasonable compensation, and when water is once disposed of
to a landowner applying the water for irrigation the control of the company over the water terminates.
3. Waters and WatercoursesWater RightsAppropriation.
There is no absolute property in the waters of a natural stream, and the only right one may acquire
thereto is by diverting the waters for a usufructuary purpose, and a water right, to be available, must be
attached to the land and become in a sense appurtenant thereto by actual application.
4.Waters and WatercourseAppropriation of WaterRights AcquiredAppropriator.
One who obtains water for irrigation from a water company, diverting water from a stream into an
artificial waterway for sale, is an appropriator of water within the rule that a prior appropriation is a prior
right, and the company is but his agent, and the right of user is equivalent to an easement in the artificial
way of the company to the extent of the amount of water delivered by the company, which right is
contingent only on the acts of the actual appropriator in paying a reasonable compensation for the water
obtained.
5. Waters and WatercoursesAppropriation of WaterRights Acquired.
The right of an actual appropriator of water for beneficial use, whether he obtains the water by
diverting it from a natural watercourse or by purchase from a water company, is a part of the freehold.
6. Waters and WatercoursesAppropriation of WaterRights Acquired.
Where a consumer of water for irrigation obtained the water from a company engaged in the business
of diverting water from a natural stream and delivering the same to lands by means of a canal for a
valuable consideration, and the company delivered to the consumer annually for several years a specified
quantity of water, all used to irrigate the land of the consumer, who improved his property on the faith
that the company would continue to deliver water, he obtained an implied contract to obtain water from
the company for a reasonable compensation.
ON PETITION FOR REHEARING
7. Waters and WatercoursesRights of Ditch Owner and UserIssues.
Whether or not the appellant, as owner of the canal, has a property interest in the right to furnish
water, is not an issue in the case at bar, and observations made in the opinion are not to be considered
decisive of this question.
Appeal from the Second Judicial District Court, Washoe County; Cole L. Harwood, Judge.
Action by Palmira Prosole and another against the Steamboat Canal Company. From a
judgment for plaintiffs, defendant appeals. Affirmed.
Summerfield & Richards, for Appellant.
The appellant company, being the owner of the Steamboat Canal, has for many years been
engaged in the business of diverting water from the Truckee River and delivering the same to
and upon the lands under that canal for a valuable consideration. It is admitted that for many
years last past and until the year 1909 the defendant by means of its canal conveyed to and
upon the lands of the respondents, and delivered to the respondents, fifty inches of water for a
valuable consideration, to wit, the sum of $6 per annum for each inch of water so conveyed
and delivered. It is admitted that in the year 1910 the appellant company refused to deliver to
the respondents the usual fifty inches of water, notwithstanding the fact that respondents
offered to pay the customary charge for said water. The appellant company in that year
delivered to the respondents a much smaller quantity of water and one which was alleged and
found by the lower court to be insufficient for irrigation of the lands of the respondents. The
case was commenced in the lower court and judgment in that court rendered upon the theory
that an annual purchaser of water at a stipulated price, from a corporation engaged solely in
the business of diverting water from a natural stream and conveying the same through its own
canal and at its own cost, to purchasers thereof, the latter, taking the same from the canal
where it is discharged, acquires a prior right to purchase and compel the delivery of such
water as he has been accustomed to receive, as against any other purchaser of water flowing
in such canal whose initial purchase thereof commenced at a later date than did that of such
claimant. The trial court held this to be true as a principle of law and issued an injunction
against the appellant company in favor of respondents restraining the appellant from failing to
permit fifty inches of water to flow through and from the Steamboat Canal upon the lands of
plaintiffs so long as there shall be diverted from the Truckee River and flowing in such canal
sufficient water to supply the plaintiffs the said fifty inches of water, and also to supply
those who are older in point of time than the plaintiffs as consumers of water from said
canal the amount they customarily received therefrom, and also from diverting or
permitting the diversion of other waters from said canal so that the said fifty inches of
water shall not flow to and upon the lands of plaintiffs so long as plaintiffs will comply
with a reasonable regulation of the defendant with regard to said Steamboat Canal and
shall pay the defendant any reasonable charge made by it for the transmission and
delivery of said fifty inches of water.
flowing in such canal sufficient water to supply the plaintiffs the said fifty inches of water,
and also to supply those who are older in point of time than the plaintiffs as consumers of
water from said canal the amount they customarily received therefrom, and also from
diverting or permitting the diversion of other waters from said canal so that the said fifty
inches of water shall not flow to and upon the lands of plaintiffs so long as plaintiffs will
comply with a reasonable regulation of the defendant with regard to said Steamboat Canal
and shall pay the defendant any reasonable charge made by it for the transmission and
delivery of said fifty inches of water. The appeal in this case is from the judgment only, on
the judgment roll alone, and incidentally the question as to whether or not the complaint
states facts sufficient to constitute a cause of action is raised.
In reviewing this case we are confronted with somewhat different conditions from those
under which and in the light of which other courts have in recent years passed upon this
all-important subject. There is nothing in the constitution of Nevada applicable to this subject
from which we may derive any light whatever. In the year 1907 (Stats. 1907, c. 18) our
legislature passed an act to provide for the appropriation and distribution and use of the water
by which it is declared that all natural watercourses and natural lakes and the waters thereof,
which are not held in private ownership, belong to the state and are subject to appropriation
for beneficial uses. Section 2 of the act is as follows: All existing rights to the use of water,
whether acquired by appropriation, or otherwise, shall be respected and preserved, and
nothing in this act shall be construed as enlarging, abridging, or restricting such rights.
Section 3 prescribes: There is no absolute property in the waters of a natural watercourse or
natural lake. No right can be acquired to such waters, except an usufructuary rightthe right
to use it, or to dispose of its use for a beneficial purpose. When the necessity for the use of
water does not exist, the right to divert it ceases, and no person shall be permitted to
divert or use the waters of a natural watercourse or lake, except at such times as the
water is required for a beneficial purpose."
use of water does not exist, the right to divert it ceases, and no person shall be permitted to
divert or use the waters of a natural watercourse or lake, except at such times as the water is
required for a beneficial purpose. (Revised Laws of Nevada, secs. 4673, 4674.)
The legislature of Nevada in the year 1913 passed an act to provide a water law for the
State of Nevada, and section 4 of this act provides: All water used in this state for beneficial
purposes shall remain appurtenant to the place of use; provided, that if for any reason it
should at any time become impracticable to beneficially or economically use water at the
place to which it is appurtenant, said right may be severed from such place of use and
simultaneously transferred and become appurtenant to other place or places of use, in the
manner provided in this act, and not otherwise, without losing priority of right heretofore
established; and provided, that the provisions of this section shall not apply in cases of ditch
or canal companies which have appropriated water for diversion and transmission to the lands
of private persons at an annual charge. (Stats. 1913, p. 192.)
[1] It is our judgment that whatever rights were acquired by respondents in this case, they
were not affected by the act of 1913, inasmuch as it is admitted that the respondents received
from appellant the amount of water claimed and applied the same to beneficial use at all
times between the years 1890 and 1909, or thereabouts. Hence, if the respondents had
acquired any rights by the application of this water to a beneficial use, the acquisition of that
right was prior to the year 1913, and we are not inclined to view the latter act as being
retrospective in so far as cases of this character are concerned. Moreover, in our judgment, it
is unnecessary to either construe the act of 1913 as applicable to the facts in this case or to
apply that act to the facts here presented.
In determining the case at hand no principal proposition is to be determined, i. e., under
the facts as presented here, what constitutes appropriation of public waters, and who is the
actual appropriator as between the ditch company, by and through whose canal and
instrumentalities the public waters are in the first instance diverted, and the owner and
reclaimer of lands upon which and over which the waters thus diverted from the public
stream are conveyed?
here, what constitutes appropriation of public waters, and who is the actual appropriator as
between the ditch company, by and through whose canal and instrumentalities the public
waters are in the first instance diverted, and the owner and reclaimer of lands upon which and
over which the waters thus diverted from the public stream are conveyed?
A secondary proposition presents itself and which in a sense is concurrent in importance to
the first or major proposition, i. e., does a perpetual right to the use of water from an irrigating
canal, acquired or reserved under contract either expressed or implied, constitute a right in the
nature of an easement in the canal which the owner of the canal has no power to cut off so
long as the party in whose favor the easement has accrued meets the reasonable demands of
the canal owner in the way of charges or recompense for services in the delivery of the water
by and through the means of his canal?
[2] This court formerly decided, and the several legislative acts have declared, that there is
no absolute property in the waters of any natural watercourse or natural lake in the state. A
canal company, which owns and operates an artificial waterway and diverts water from a
natural stream solely for the purpose of gain through the sale and distribution of that water to
others who, after receiving the water, actually apply it to the soil for the reclamation and
irrigation thereof, can acquire no right to such waters, excepting the right to dispose of its use,
and for this latter right they are entitled to reasonable monetary benefit. When water is once
disposed of by the original diverting agentthe canal companyto one who, being the
owner of irrigable lands, applies the same to those lands, the power of control of the agent
ceases, because his only power of control at all was based upon the obligation imposed upon
him by law to dispose of the water to those who would actually apply it to the land. The right
of a company of this character to divert public waters carries with it a corresponding duty, i.
e., to dispose of its use for beneficial purposes.
pose of its use for beneficial purposes. The one cannot exist without the performance of the
other. In other words, there is no right created by the mere diversion of water from a public
watercourse. This act of itself carries with it no right; but, when the act of diversion is
coupled with the act of application to beneficial purpose, the appropriation is accomplished.
[3] Early legislation in this state formulated little, if any, law applicable to the subject at
hand. It was not until 1903 that an attempt was made to formulate a law applicable to the
requirement and appropriation of the public waters of the state. The act of 1903 (Stats. 1903,
c. 4) was superseded by the act of 1905 (Stats. 1905, c. 46), and that act in turn gave place to
the act of 1907 (Stats. 1907, c. 18), and the act of 1907 was repealed by the act of 1913 (Stats.
1913, c. 140). It is unnecessary in this case for us to take upon even incidentally the several
acts referred to. Suffice it to say that the act of 1907 was in force at the time at which it is
alleged in this case the appellant company failed to deliver the water to respondent. The
doctrine that a prior appropriation constitutes a prior right has long since been adhered to in
the jurisdictions embraced within the arid and semi-arid region of this country, and has been
formulated and announced by this court in former decisions. It cannot be questioned that this
doctrine is strictly applicable to the right acquired by one who, being the owner of irrigable
lands, directly diverts water from a public stream by means of his own instrumentalities or his
own ditch. In the case at hand we are confronted with the question as to whether or not this
rule shall be made applicable to those who obtain water from a canal or waterway constructed
by another for the purpose of diverting water from a public stream for sale and distribution.
In determining this question it must be constantly kept in mind that absolute property in
the waters of a natural stream does not exist; that the only right that one can acquire to such
water and the only right by reason of which one can divert such waters from their natural
watercourses is for a usufructuary purpose and in cases of this characterthe purpose of
applying the water thus diverted to irrigable lands.
natural watercourses is for a usufructuary purpose and in cases of this characterthe purpose
of applying the water thus diverted to irrigable lands. In other words, a water right for
agricultural purposes, to be available and effective, must be attached to the land and become
in a sense appurtenant thereto by actual application.
[4] In this case the appellant company makes no claim based on its ownership or
possession of the lands under its canal, and, so far as we are advised by the pleadings, it is not
now, nor was it at the time of its construction, the owner of the lands which it sought to cover
by the construction of its canal. We deem it fair to assume, therefore, that the sole aim and
object and purpose of the construction of the canal and the aim and object and purpose of its
operation and maintenance until the present time is for the purpose of disposing of the water
which it diverts from the public stream to those who own or possess the lands lying under the
ditch. The act of diversion on the part of the appellant company could not, as we have
reasoned it, constitute a complete and valid appropriation. It required more than the mere
diversion of the water to complete the appropriation under the doctrine as heretofore referred
to. Hence the diversion of the water from the canal of the appellant company and its
application to a beneficial use by the owners or possessors of irrigable lands constituted the
culminating act in perfecting the appropriation. This latter step, namely, the application of the
water itself to the lands for the purpose of reclamation and irrigation, fulfilled the primal and
essential object to all legislation and judicial expression upon this subject, i. e., the cultivation
of the soil.
The history of the arid west is replete with legislation and judicial expression upon the
subject of irrigation. Much of the modern law applicable to this subject has grown out of the
conditions found prevalent in this region, and the paramount thought, both in the legislative
acts of the several states and in the judicial expressions coming from the several jurisdictions,
is the actual economic application of the exceedingly scarce, but all-important element,
water to the soil, with the end in view that the latter may perform its highest function in
producing sustenance for humanity.
economic application of the exceedingly scarce, but all-important element, water to the soil,
with the end in view that the latter may perform its highest function in producing sustenance
for humanity. Hence it follows, as it has been reasoned out by many courts of last resort in
able and well-considered opinions, that he who applies the water to the soil, for a beneficial
purpose, is in fact the actual appropriator, although the application may be made through the
agency of another, who by and through is own means and instrumentalities diverts the water,
in the first instance, from its natural course.
As was well stated by the Supreme Court of Arizona in the case of Slosser v. Salt River
Valley Canal Company, speaking through Mr. Justice Sloan: The appropriator may thus,
immediately, by constructing and owning his own ditch or canal, or, mediately, by acquiring
the permanent right to the service of another's ditch or canal, whether the latter be owned by a
natural or artificial person, perfect his appropriation. A corporation thus organized for the
purpose of furnishing water for agricultural purposes, to be used by others in privity of
contract with it, becomes the mere agent of the latter, and, under the statute, may divert from
a public stream water which the latter may acquire and use for purposes of irrigation. The
measure of its right so to do is the needs and requirements of those owners or possessors of
arable and irrigable lands with whom, by contract, it stands in relation as agent. The doctrine
of agency, therefore, unless we concede to such corporations a right not enjoyed by other
inhabitants under the statute, must be invoked, in order to confer upon them any right to the
diversion of water from a public stream. (Slosser v. Salt River Co., 7 Ariz. 376, 65 Pac.
336.)
It being our judgment that the rule as asserted in the case of Slosser v. Salt River Co.,
supra, is applicable in this case, it follows that the appellant company can be regarded in no
other light than that of the agent for those who, having in years past taken the water from the
canal of appellant, have applied the same to beneficial use, and who have thus acquired a
right of user equivalent to an easement in the canal of appellant to the extent of the
amount of water delivered to them by appellant.
the canal of appellant, have applied the same to beneficial use, and who have thus acquired a
right of user equivalent to an easement in the canal of appellant to the extent of the amount of
water delivered to them by appellant. This right is contingent only upon the acts of the actual
appropriator in meeting the reasonable demands of the conveyor for services performed by
way of delivery of the water to the point of diversion from the latter's canal. (People, ex rel.
Standard, v. Canal Co., 25 Colo. 213, 54 Pac. 626; 2 Wiel on Water Rights, sec. 1340.)
The Supreme Court of Colorado, in the case of Wright v. Irrigation Co., 27 Colo. 313, 61
Pac. 603, held in substance that a contract existing between the company, as the conveyor of
the water from the natural stream, and the actual appropriator, is not for the purchase of the
given volume of water, but rather the acquirement of the right to use the canal of the
conveyor as a means of conducting a given volume, or so much thereof as may be necessary
to irrigate a certain number of acres.
The Supreme Court of Idaho, in passing upon this subject in the case of Farmers'
Cooperative Co. v. Riverside Irr., 14 Idaho, 450, 94 Pac. 761, adhered to a different rule from
that announced by the Supreme Court of Arizona and the Supreme Court of Colorado,
wherein the Supreme Court of Idaho said: The appropriation of waters carried in the ditch
operated for sale, rental, and distribution of waters does not belong to the water users, but
rather to the ditch company. The right to the use of such water, after having once been sold,
rented, or distributed to any person who has settled upon or improved land for agricultural
purposes,' becomes a perpetual right, subject to defeat only by failure to pay annual water
rents and comply with the lawful requirements as to the conditions of the use.
It must be observed in this respect, however, that the Supreme Court of Idaho in
formulating this rule did so under express provisions of its constitution.
[5] That the right of an actual appropriator or user of water once acquired from the
original converter is an easement has been subjected to some considerable criticism by
those who have given thought to this subject, and it has been said that to term this right
an easement it must be such as would pass as an appurtenance without further
description in a conveyance of the realty on which or to which the actual right of user had
been exercised.
of water once acquired from the original converter is an easement has been subjected to some
considerable criticism by those who have given thought to this subject, and it has been said
that to term this right an easement it must be such as would pass as an appurtenance without
further description in a conveyance of the realty on which or to which the actual right of user
had been exercised. But, applying the doctrine of appropriation as hereinbefore referred to,
and, answering this criticism in the light of practical and material observations, it is at once
apparent that the very criticism itself is an answer to the proposition on which the criticism is
based, because the very right itself, relating as it does to the land upon which it is applied,
although in a sense incorporeal, nevertheless, by reason of its application, becomes an
integral part of the freehold. The water and the land to which it is applied become so
interrelated and dependent on each other in order to constitute a valid appropriation that the
former becomes, by reason of necessity, appurtenant to the latter. The right of a direct
appropriator to use the waters of a public stream and to apply the same to beneficial use has
been termed an incorporeal hereditament, and it has been said that a consumer under a
ditch, constructed and maintained for the sole purpose of distribution and sale, possesses a
like property. (Weil on Water Rights, 3d ed. 1240, and authorities there cited.)
[6] It is the contention of appellant in this case that, inasmuch as plaintiffs allege only an
annual delivery of fifty inches of water prior to 1910 and the failure and refusal to furnish
such an amount of water to respondents in that year, no continuing contract is established
thereby between respondents and appellant. This contention is, in our judgment, not well
founded. As disclosed by the record, respondent went upon the land in question and
reclaimed the same, and by and through the continuous use of the water diverted from
appellant's canal cultivated and improved the land and caused the land to produce crops.
land to produce crops. The appellant company having once furnished the water to respondent,
and having by the initial delivery of water and by the continuous delivery thereof for a
successive number of years held out to respondent that he could improve the land in question
in reliance upon such water, it would be unreasonable to say that the appellant could now
deprive respondents of the use of the water so long as the amount of the water diverted by the
respondent was economically essential to the cultivation of the land. Having delivered the
water and having observed the acts of respondents in applying the water and improving the
land and exerting their energies toward the creating and upbuilding of property based upon a
faith and a justifiable expectation that the company would continue to deliver the water, the
appellant, in our judgment, cannot now be heard to deny the existence of an implied
contractual relation between itself and respondents.
Following out the reasoning that he who actually applies the water to the soil is the
appropriator, even where he obtains the water from the canal of one who has diverted it for
distribution, the law of appropriation must apply to determine his right as against other users
from the same canal or system. Hence, the rule that a prior appropriation constitutes a prior
right applies to the appropriators of water, where the appropriation is made by and through
the agency of another, as well as where the appropriation is made directly from the public
stream. The respondents in this case were entitled to the amount of water formerly diverted
and used by them so long as the delivery of that water to them did not interfere with those
whose rights of appropriation under the same system were prior in point of time. (Lanning v.
Orborne, 76 Fed. 319; Mandell v. San Diego Co., 89 Fed. 295.)
As was said by Judge Ross in the case of Mandell v. San Diego Co., supra: A consumer
whose land is situated within the flow of such a distributing system, * * *
and who has, by means of water thereby supplied to him, made valuable improvements on his
land, cannot thereafter be lawfully deprived of such water in order that the distributor may
supply later comers, even though a larger area, by reason of more favorable conditions, may
thus be brought under cultivation. Such a rule would manifestly work destruction to the just
and well-established rule that in cases like this the first in time is the first in right.
It is the duty of the diverting corporation in cases of this kind, where a consumer has once
established a right the use of water by acquiring the same and applying it to a beneficial
purpose, to continue to furnish him water in preference to latter applicants, provided he has
never waived his rights nor forfeited the same. The company has the right, and it is its duty, to
discriminate between appropriators of water from their irrigation system, giving the
preference to those appropriators who are oldest in point of time. In cases of this character the
company is but a diverter inasmuch as its only purpose and power is to divert the water from
the natural waterway. The consumer is the converter inasmuch as it is he who converts the
water to the land covered by the canal, and, having once applied the water to the land for
beneficial purposes, he should not be deprived of the use or benefit of such water in favor of
later applicants, so long as he complies with the reasonable requirements of the diverting
company. (3 Kinney, Irr. & Water Rights, sec. 1500.)
The question as to the amount of damages assessed by the jury in the trial court in this case
is not before us.
The judgment should be affirmed.
It is so ordered.
On Petition For Rehearing
Since we rendered the decision in this case, the Supreme Court of the United States has
rendered the decision in the case of San Joaquin and Kings River Canal and Irrigation
Company v. County of Stanislaus, 233 U. S. 454, 34 Sup. Ct. 652, 5S L. Ed. 1041, and in
appellant's petition for rehearing reference is made to this decision.
Irrigation Company v. County of Stanislaus, 233 U. S. 454, 34 Sup. Ct. 652, 58 L. Ed. 1041,
and in appellant's petition for rehearing reference is made to this decision. One observation
made by the Supreme Court of the United States in that case is especially pertinent to the
principal issue in the case at bar, inasmuch as it supports our position taken therein. The court
said: No doubt it is true that such an appropriation and use of the water entitles those within
reach of it to demand the use of a reasonable share on payment.
In the San Joaquin-Stanislaus case, supra, the court, speaking through Mr. Justice Holmes,
makes some very pertinent observations relative to the property rights to be recognized in
favor of the party furnishing the water, where the sole object for the diversion is that of sale
and distribution. As to whether or not the appellant had a property interest in the right to
furnish the water is not an issue in the case at bar, and our observations made in the opinion
are not to be considered as decisive of this matter.
Application for rehearing in the above-entitled cause is hereby denied.
____________
37 Nev. 167, 167 (1914) In Re Jackson
[No. 2124]
In the Matter of the Application of LITTLE POOLE JACKSON for a Writ of Habeas Corpus.
[140 Pac. 719]
1. ProstitutionIndictmentPermit.
An indictment charging that the defendant permitted his wife to be in a house of prostitution, is
sufficient to charge an offense under Rev. Laws, sec. 6445, making it a felony for a person to connive at,
consent to, or permit his wife being in any house of prostitution, the word permit in such indictment
and statute meaning not merely failure to prevent, but requiring an active wish, or at least willingness in
defendant's mind that his wife remain in such house after knowledge that she is there.
2. EvidenceJudicial KnowledgeHusband and WifeStatutes.
Courts judicially know that both the husband and wife usually have a powerful moral suasion over the
actions of each other, and it is in this sense that the word permit is used in Rev. Laws, sec. 6445.
37 Nev. 167, 168 (1914) In Re Jackson
Original proceeding. Application by Little Poole Jackson for a writ of habeas corpus.
Proceeding dismissed.
Dixon & Miller, for Petitioner.
Geo. B. Thatcher, Attorney-General, and M. B. Moore, District Attorney, for Respondent.
This application raises the question of the sufficiency of an indictment to charge a public
offense. The indictment, in part, reads: That said defendant * * * being then and there the
husband of one Edna Pearl Jackson, * * * did then and there wilfully, unlawfully, and
feloniously permit her, the said Edna Pearl Jackson, to be in a house of prostitution, to wit,
the house. * * *
Section 6445 of the Revised Laws contains the provision: Every person who, being the
husband of any woman, * * * shall connive at, consent to, or permit her being in any house
of prostitution, shall be guilty, etc.
It is contended by counsel for petitioner that the word permit comprehends some lawful
control or authority over the action of another; that power to permit an action cannot exist
without the corresponding power to refuse; that there can be no guilt in permitting a thing to
be done where power to prevent does not exist; that a husband has no such legal power or
control over the actions of a wife as gives him authority to prevent her entering a house of
prostitution if she desires so to do; that not having power in law to prevent such action on the
part of a wife, an indictment which charges only that the husband permitted such action fails
to charge an offense.
We shall not enter upon a consideration of the question whether a husband or wife has any
legal control over the actions of the other. This court, however, judicially knows that both the
husband and wife usually have a powerful moral suasion over the actions of each other.
37 Nev. 167, 169 (1914) In Re Jackson
It is in this sense, we think, the word permit is used in the statute. In People v. Conness,
150 Cal. 114, 88 Pac. 821, the court said: It would not be unreasonable or absurd, or an
undue restriction of personal liberty, to forbid all persons from remaining in a bawdy house,
nor to forbid any person from allowing or permitting another to remain there, in the sense in
which the words allow' and permit' are used in this statute. * * * The statute is in the
disjunctive, and it declares that, if the husband shall allow' his wife to remain in a house of
prostitution, he is guilty of a felony. The word allow' here means more than mere abstinence
from prevention,' as the court below defined it in an instruction given to the jury. It is almost
the identical meaning of the word permit,' also used in the statute. It implies some sort of
assent on the part of the husband. There must be some active wish, or, at least, willingness, in
his mind, after he has knowledge of her presence in the house, that she should continue there;
something more than mere indifference to her whereabouts, or passive sufferance in a case
where the circumstances do not call upon him to interfere with her conduct. Where he does
not, directly or indirectly, place or leave her in the house, or connive at, consent to, or permit
of, her going there (using the word permit' in the same sense which we attribute to the word
allow'), he must, to some extent, be an accomplice in her remaining there after he has
knowledge of the fact. See, also, People v. Duncan, 134 Pac. (Cal. App.) 797; People v.
Nitta, 17 Cal. App. 152, 118 Pac. 946; State v. Ilomaki, 40 Wash. 629, 82 Pac. 873.
The indictment, we think, is not objectionable as not stating a public offense.
The proceeding is dismissed.
____________
37 Nev. 170, 170 (1914) Darrough v. The Nevada Milling Co.
[No. 2082]
MRS. J. T. DARROUGH, Administratrix of the Estate of J. T. Darrough, Deceased,
Respondent, v. THE NEVADA MILLING AND ORE PURCHASING COMPANY (A
[140 Pac. 724]
1. CorporationsRepresentation by Officers and Agents.
In an action against a corporation upon a note, defended upon the ground that the person executing
the note was not its president, either de jure or de facto, because not a stockholder, evidence held to
sustain a finding that he was a stockholder and president with authority to execute the note.
Action by Mrs. J. T. Darrough, administratrix, against the Nevada Milling and Ore
Purchasing Company (a corporation). From a judgment for plaintiff, defendant appeals.
Affirmed.
P. E. Keeler, for Appellant.
F. K. Pittman, for Respondent.
In this action Mrs. J. T. Darrough, as administratrix of the estate of J. T. Darrough,
deceased, sued to recover $4,000 loaned by her deceased husband to C. S. Lemon, as
president of the Nevada Milling and Ore Purchasing Company, a New Jersey corporation.
From the judgment of the trial court in favor of respondent, and from the order of that court
denying appellant's motion for a new trial, appeal is taken.
It is the contention of appellant herein that C. S. Lemon was not the president of the
Nevada Milling and Ore Purchasing Company, either de factor or de jure, for the reason that
no shares of stock had been issued to C. S. Lemon and, under the laws of New Jersey, the
holding of stock in a corporation is made a prerequisite to qualification for office in the
corporation.
It is admitted by appellant that the money was loaned by respondent to C. S. Lemon, and
that the note given in security for the loan was signed by C. S. Lemon, as president of the
Nevada Milling and Ore Purchasing Company.
by respondent to C. S. Lemon, and that the note given in security for the loan was signed by
C. S. Lemon, as president of the Nevada Milling and Ore Purchasing Company. They
contend, however, that although the money borrowed by Lemon from J. T. Darrough was
used in the construction of a mill at Manhattan, nevertheless the appellant company was not
liable for the loan for the reason that Lemon was an independent contractor, and was
constructing the mill under an agreement with appellant company to turn the same over to
appellant company when it was completed. It is the contention of the appellant that the mill,
never having been completed by Lemon, was never turned over by Lemon to the appellant
company, and was never accepted by the appellant company.
The uncontradicted testimony of Mrs. Davidson, bookkeeper for the appellate company
and employed by C. S. Lemon, president and general manager of the company at Manhattan,
is to the effect that the money borrowed from Darrough was used in paying off debts incurred
in the construction of the mill, and for labor performed in and about the same. In that respect
she testified as follows:
Q. Were you working for said company during the month of November, 1907? A. Yes.
Q. If you answer the preceding question in the affirmative, state whether or not you are
familiar with the execution of a note of $4,000 on the 6th day of November, 1907, in favor of
J. T. Darrough, for money loaned to the company for paying the debts of the company? A.
Yes.
Q. If you answer the preceding question in the affirmative, state the facts within your own
knowledge concerning the execution of said note. A. I know within my own knowledge
Charles S. Lemon borrowed from J. T. Darrough for the use of the company in paying its
debts, and defraying the expenses of said company, and the money was used for that purpose.
Q. If you know, state what was done with the money received from J. T. Darrough in
consideration of the execution of said note? A. It was used for defraying the expenses of
the company and paying its debts.
execution of said note? A. It was used for defraying the expenses of the company and paying
its debts. * * *
Q. State what authority, if you know, the party executing said note had for executing the
same on behalf of said Nevada Milling and Purchasing Company? A. Charles S. Lemon
negotiated and made contracts for the purchasing of all ore for said company, and bought all
the machinery for the company, and fitted the entire mill complete, and hired all men, and he
was the only official of said company at that time in Manhattan.
At the trial of the cause in the lower court the appellant herein introduced in evidence
certain pages of the minute book kept by the corporation, and respondent introduced the
remainder of said book in support of her contention. From the record it appears that the
minute book introduced in evidence is a bound volume, the pages which are firmly fastened,
constituting one book or volume. This is significant only in so far as it indicates that certain
minutes, although not signed by the secretary, are, however, in the same volume in which
other minutes appear duly signed. It appears from this record that the first meeting of the
stockholders of the Nevada Milling and Ore Purchasing Company was held at Camden, New
Jersey, March 25, 1907, and at that meeting the stockholders passed a resolution and caused
the same to be entered upon the minutes, which resolution is as follows:
Whereas, Clifford McClellan and Chas. S. Lemon have offered to sell to this company
property as follows: The use of the Griffin process for saving gold and silver, also certain
valuable contracts in hand including a contract with Douglas and Kendall, leases for the
treating of ores now on their dumps. Also, the Manhattan Mining Company, Chipmonk
Mining Co., The Original Manhattan Mining Company, The Manhattan Consolidated Mining
Company, and the Seyler-Humphreys Mining Company, all bearing date of January 15, 1907.
Also, buildings and all requisite machinery to complete and operate a mill of at least nine
stamps together with mill site and water rights for same; in consideration of the issue of stock
of this company to the amount of one hundred thousand dollars {$100,000), par value,
and whereas, it appears to the stockholders that such property is necessary for the
business of this company, and that the same is of the value of one hundred thousand
dollars {$100,000); resolved, that the board of directors of this company be and they are
hereby authorized and directed to purchase the said property above mentioned for the
said price and to issue said stock in payment thereof; provided, that in the judgment of
the board of directors, the said property is of the value above stated.
this company to the amount of one hundred thousand dollars ($100,000), par value, and
whereas, it appears to the stockholders that such property is necessary for the business of this
company, and that the same is of the value of one hundred thousand dollars ($100,000);
resolved, that the board of directors of this company be and they are hereby authorized and
directed to purchase the said property above mentioned for the said price and to issue said
stock in payment thereof; provided, that in the judgment of the board of directors, the said
property is of the value above stated. Resolved, that the board of directors be, and they hereby
are, authorized and directed to accept said property as full payment of the subscription for
stock of the incorporators, and to issue full-paid stock to the incorporators, or their assigns, to
the amount of their respective subscriptions.
Following the meeting of the stockholders, and on the same date, the directors held a
meeting, at which meeting F. R. Hansell was elected president and George H. Martin was
elected secretary, and at the same meeting the board of directors, pursuant to the authorization
passed by the stockholders, adopted a resolution and caused the same to be entered upon their
minutes, part of which is as follows:
Resolved, that this company accept the offer of Clifford McClellan and C. S. Lemon to
sell to this company the property described in the resolution of the stockholders passed March
25, 1907, authorizing the purchase, and the board of directors do hereby adjudge and declare
that said property is of the fair value of one hundred thousand dollars, and that the same is
necessary for the business of this company. * * * Further resolved, that the president and the
treasurer be, and they hereby are, authorized and directed to issue to the order of said vendors
the full-paid capital stock of this company to the aggregate amount of one hundred thousand
dollars, as provided in said agreement.
The waiver of notice, as signed by the directors and filed in the minutes of the meeting of
March 25, at which meeting the foregoing resolution was passed, shows that the
directors' meeting was held for the purpose of electing officers and to authorize the
purchase of property necessary for the business of the company.
meeting the foregoing resolution was passed, shows that the directors' meeting was held for
the purpose of electing officers and to authorize the purchase of property necessary for the
business of the company.
The total authorized capital stock of the company, according to its articles of
incorporation, was $100,000, and, as appears from the foregoing resolution passed by the
stockholders of the corporation at their first meeting, and by the directors of the corporation at
the first meeting of their board, the entire authorized capital stock of the company was
directed to be issued to McClellan and Lemon, the vendors, in payment for the property
mentioned in the resolution. This resolution was passed by the stockholders, at their first
meeting, and designated the property as the Griffin process for saving gold and silver,
contract with Douglas and Kendall for treating ores on the dumps of their mining property,
contracts with the Manhattan Mining Company, the Chipmonk Mining Company, the
Original Manhattan Mining Company, the Manhattan Consolidated Mining Company, and
the Seyler-Humphreys Mining Company, also a mill site and water rights for the same, and
buildings and requisite machinery to complete and operate a mill of at least nine stamps.
The president and treasurer being, by the board of directors, authorized and directed to
issue the full capital stock of the company, amounting to $100,000, to Lemon and McClellan,
the presumption must be that the officers of the corporation did as they were directed to do by
their board of directors, and it must reasonably follow that the entire capital stock of the
corporation was issued to McClellan and Lemon, pursuant to the direction of the board of
directors; hence, it is manifest that C. S. Lemon became the holder of stock in the corporation
on the 25th day of March, 1907. Moreover, the stockholders of the corporation recognized C.
S. Lemon as a holder of stock, for it appears that at 12 o'clock on the same day on which the
foregoing transactions took place, to wit, the 25th day of March, a special meeting of the
stockholders of the company was held, at which special meeting the resignations of F. R.
Hansell, as president, and George H. B. Martin, as secretary and treasurer, were presented
and on motion accepted by the company, and at the same time Charles S.
the stockholders of the company was held, at which special meeting the resignations of F. R.
Hansell, as president, and George H. B. Martin, as secretary and treasurer, were presented and
on motion accepted by the company, and at the same time Charles S. Lemon, Clifford
McClellan, and Charles A. Porter were nominated directors of the company to serve for the
unexpired terms of the directors resigned. It further appears that at 2:30 p. m. on the same
day, to wit, the 25th day of March, 1907, pursuant to waiver of notice signed by all the
directors, a directors' meeting was held at which meeting Mr. Charles S. Lemon was elected
president.
Prior to the election of Lemon as president of the corporation it appears that an agreement
for the purchase of property was entered into between Lemon and McClellan, as vendors, and
the Nevada Milling and Ore Purchasing Company, acting by and through F. R. Hansell, its
president, and George H. B. Martin, it secretary, and part of which agreement is as follows:
Whereas, the board of directors of the company have ascertained, adjudged, and declared
that the said property and rights are of the fair value of one hundred thousand dollars
($100,000), and that the acquisition thereof is necessary for the business of the company and
to carry out its contemplated objects; now, therefore, this agreement witnesseth: That the
vendors have sold, assigned, transferred, and set over, and do hereby sell, assign, transfer, and
set over unto the company, its successors and assigns, all their right, title, and interest in and
to the following-described property, to wit: * * * Also buildings and all requisite machinery
to complete and operate a mill of at least nine (9) stamps together with mill site and water
rights for same.
Whatever might be contended by appellant as to the acts of Mr. Lemon being void for
want of authority, it cannot, in our judgment, be contended that the acts of the board of
directors of the company, of which board of directors F. R. Hansell was president, were other
than valid, and the words used in the agreement for the purchase of the property, as
disclosed by the instrument appearing in the minutes, signed by F. R. Hansell as
president, and as heretofore set forth in part, are words signifying conveyance, and
cannot, in our judgment, be viewed in any other light than as an absolute conveyance of
the property enumerated in the agreement from McClellan and Lemon, as vendors, to the
Nevada Milling and Ore Purchasing Company, appellant herein.
purchase of the property, as disclosed by the instrument appearing in the minutes, signed by
F. R. Hansell as president, and as heretofore set forth in part, are words signifying
conveyance, and cannot, in our judgment, be viewed in any other light than as an absolute
conveyance of the property enumerated in the agreement from McClellan and Lemon, as
vendors, to the Nevada Milling and Ore Purchasing Company, appellant herein.
The contention of appellant as to the acts of Lemon being void for the reason that he was
not a stockholder of the corporation, and hence could not legally hold office as president, is in
our judgment not well founded in view of the minutes of the corporation, references to which
have heretofore been made. In our judgment, Lemon was undoubtedly a holder of stock in the
corporation on the 25th day of March, 1907. But, whether Lemon was or was not the legally
constituted president of the corporation, the transaction between Lemon and McClellan, as
vendors, and the appellant corporation was unquestionably completed on the 25th day of
March. Prior to the time at which Lemon took office as president, the property as enumerated
in the several instruments found in the minutes had been offered to the stockholders at their
meeting by Lemon and McClellan, as vendors. The stockholders of the corporation
recommended that the board of directors purchase the property and issue the entire paid-up
capital stock of the corporation in payment; the board of directors in turn declared the
property to be worth the sum of $100,000, and directed the issuance of the full paid-up capital
stock of the company, to the aggregate amount of $100,000, to Lemon and McClellan.
The contention of the appellant company as to Lemon being an independent contractor in
the construction of the mill, and that the mill was never taken over by the company from
Lemon is, in our judgment, not well founded in view of the resolution passed by the board of
directors and appearing in the minutes of the company and of date of September 4, 1908, in
which resolution the following appears: "Whereas, the said company is the owner of a
certain ten-stamp mill in the town of Manhattan, county of Nye, State of Nevada,
commonly known as the 'Lemon Mill'; and whereas, the company has at and before the
execution of this agreement with cash contributed or advanced to it, paid in full all labor
claims against said mill so that all labor liens against said mill may be forthwith released;
* * * and whereas, the company has in like manner furnished a bond of a duly qualified
surety company for the release of all attachments against the said mill and furthermore
will, after the execution hereof, make any necessary arrangements to provide like bonds
to relieve the said mill from any attachments to be levied against it hereafter on account
of the company's indebtedness so that the lessee, in the agreement hereinafter
mentioned, may have uninterrupted possession and control of said premises during the
term of said agreement."
following appears: Whereas, the said company is the owner of a certain ten-stamp mill in the
town of Manhattan, county of Nye, State of Nevada, commonly known as the Lemon Mill';
and whereas, the company has at and before the execution of this agreement with cash
contributed or advanced to it, paid in full all labor claims against said mill so that all labor
liens against said mill may be forthwith released; * * * and whereas, the company has in like
manner furnished a bond of a duly qualified surety company for the release of all attachments
against the said mill and furthermore will, after the execution hereof, make any necessary
arrangements to provide like bonds to relieve the said mill from any attachments to be levied
against it hereafter on account of the company's indebtedness so that the lessee, in the
agreement hereinafter mentioned, may have uninterrupted possession and control of said
premises during the term of said agreement.
By the resolution as it appears in the minutes of the corporation, of which the foregoing is
a part, it is apparent that the corporation recognized liens against the mill and liquidated the
same as debts against the corporation incurred under the direction and management of
Charles S. Lemon. Moreover, they expressly declared their ownership of the mill, thereby
declaring that the mill, although not completed, was built by Lemon, acting for and in behalf
of the company.
Bernard Ruckdeschel, one of the principal witnesses for the appellant company, testified in
his deposition relative to purchasing certain lien claims against the Lemon mill, and in that
respect the witness said: I consulted the attorney for the company because I was not willing
to make any move towards purchasing those claims unless I was assured that the company
recognized them as absolute and exclusive first liens against its property.
It appears from the minutes of the corporation that attorney Frederick L. Berry, of
Tonopah, was by resolution made the fiscal agent for the corporation in the State of Nevada,
and, as appears from the record, he was later made attorney for the corporation to represent
it in certain suits in which the corporation was made defendant and in which labor liens
were filed against the Lemon mill, as the property of appellant company.
made attorney for the corporation to represent it in certain suits in which the corporation was
made defendant and in which labor liens were filed against the Lemon mill, as the property of
appellant company. The deposition of Frederick L. Berry was offered in behalf of the
appellant company in the trial court, and in that deposition he testifies as follows:
Q. Did you know one Charles S. Lemon? A. Yes.
Q. What connection did he have with the property on which the liens were placed
[referring to the case of Giffen v. Nevada Milling and Ore Purchasing Co.]? A. He was the
manager of said property referred to in question 19.
Q. Was he the manager of the place and have complete charge of said property? A. Yes.
Q. Did he ever admit to you the correctness of claims as set forth in plaintiff's complaint
[referring to Veith v. Nevada Milling and Ore Purchasing Co.]? State where, when, and
under what conditions it was. Answer fully. A. He did. Early in the month of April, 1908, at
Manhattan, Nevada, in what was known as the Patterson-Mikulich building, he exhibited to
me his time books and books of account, checking over each item mentioned therein, and,
after devoting at least two hours thereto, stated that the claims were correct. This statement
was made in the presence of Bernard Ruckdeschel and Horace G. Williams, who were then
and there present giving the matter their undivided attention.
Q. In what capacity was he acting when he made statements as set forth in your answer to
question 21? A. He was acting as manager of the Nevada Milling and Ore Purchasing
Company.
In accordance with the by-laws of the company the president was invested with the general
and active management of the business of the company and was empowered to execute
bonds, mortgages, and other contracts under the seal of the company.
In the suits commenced for the foreclosure of labor liens filed against the Lemon Mill, the
appellant company appeared and filed its pleadings in defense thereto, and in each
instance C. S. Lemon, in verifying the pleadings in behalf of the appellant company, made
oath that he was the president of the same, and in each instance Mr.
liens filed against the Lemon Mill, the appellant company appeared and filed its pleadings in
defense thereto, and in each instance C. S. Lemon, in verifying the pleadings in behalf of the
appellant company, made oath that he was the president of the same, and in each instance Mr.
Frederick L. Berry, the duly authorized agent for the appellant company, appeared as attorney
for the company in the presentation of its pleadings and defenses.
The whole record discloses the acquiescence on the part of the appellant company in the
acts of C. S. Lemon. Moreover, the record discloses that C. S. Lemon, at the time of his
election as president of the corporation, was unquestionably a holder of stock in the
corporation. As president of the corporation he took up his headquarters in the town of
Manhattan for the purpose of generally managing the affairs of the corporation, and when the
property which he was constructing became involved in litigation growing out of labor liens,
the company assumed the responsibility, and, as its resolution shows, paid in full all labor
claims against the mill known as the Lemon Mill, and, as is disclosed by the resolution,
these labor liens were paid with cash contributed or advanced to the company.
The testimony of Mrs. Davidson is to the effect that the money borrowed from J. T.
Darrough, of whose estate the respondent is the duly authorized administratrix, was for the
use of the company in paying its debts and defraying the expenses of said company, and the
money was used for that purpose. The loan was negotiated by C. S. Lemon, as president of
the appellant company. The money was secured by a note signed by the appellant company,
by C. S. Lemon, president, and these acts of Lemon were performed during the time at which
the company, by resolution duly adopted by its board of directors, made open declaration, by
filing its list of officers with the secretary of state of the State of Nevada, that Charles S.
Lemon was its duly elected and qualified president.
The judgment of the lower court should be affirmed.
It is so ordered.
Per Curiam:
Petition for rehearing denied.
____________
37 Nev. 180, 180 (1914) Esmeralda County v. Mineral County
[No. 2122]
ESMERALDA COUNTY, Et Al., Relator, v. MINERAL
COUNTY, Respondent.
[141 Pac. 73]
1. JudgesSalaryApportionmentCountiesAssessment Roll.
General revenue act (Rev. Laws, sec. 3623), section 7, provides that the board of county
commissioners of each county shall cause to be prepared suitable books for the use of the assessor, in
which he shall enter his tax list and assessment roll as thereinafter provided, and in that list and roll shall
be assessed and included all taxes levied by authority of law for county purposes, the book to contain
suitable printed heads and be ruled to conform with the form of the assessment roll as provided by the
act. Section 4902 declares that each county in each district in the state shall contribute annually to the
fund required to pay the salary of the district judge its proportionate share of the money necessary to pay
such salary, based on the assessment roll of each county for the previous year. Held, that the term
assessment roll, as used in section 4902, means the whole roll for the assessment of taxes, including not
only the assessment of real and personal property mentioned in Rev. Laws, sec. 3633, but the assessment
of the proceeds of mines mentioned in Rev. Laws, sec. 3696, as well.
Submission of controversy of Esmeralda County against Mineral County. Judgment
awarding writ of mandamus to relator.
M. A. Diskin, District Attorney of Esmeralda County, for Relator.
John R. Melrose, District Attorney of Mineral County, and Mack & Green, for
Respondent.
This is a controversy submitted upon an agreed statement of facts, without formal action,
as provided for in the civil practice act {Rev. Laws, secs.
the civil practice act (Rev. Laws, secs. 5252-5254)a writ of mandamus to issue in favor of
one party or the other, as this court shall determine from the agreed facts. The counties of
Esmeralda and Mineral, relator and respondent herein, comprise the Seventh judicial district,
and the question involved is the amount each of such counties shall contribute to the payment
of the district judge's salary.
It is provided by Rev. Laws, sec. 4902, that: Each county in each district in the state shall
contribute annually to the said fund its proportionate share of the money necessary to pay the
judge or judges of its district their respective salaries monthly for such year, based upon the
assessment roll of each county for the previous year.
It is the contention of counsel for relator that the words assessment roll, used in the
section of the statute quoted supra, is intended to mean the assessment roll as mentioned and
defined in Rev. Laws, sec. 3633, as amended. (See Stats. 1913, pp. 165, 182.) In that section
the assessment roll referred to only includes the real and personal property assessed in a
county, exclusive of the proceeds of mines. It is the contention of counsel for respondent that
the words assessment roll, as used in Rev. Laws, sec. 4902, supra, means not only the
assessment roll of real and personal property, provided for in Rev. Laws, sec. 3633, supra,
but also the assessment roll mentioned in Rev. Laws, sec. 3696, upon which is listed or
assessed the proceeds of all mines in their respective counties. In other words, these two
rolls combined constitute the assessment roll of the county. We think the contention of
counsel for respondent must be sustained. The assessment roll of each county, as used in
Rev. Laws, sec. 4902, supra, means the assessment roll upon which appears all property
subject to an ad valorem tax, and this includes proceeds of mines.
Section 7 of the general revenue act (Rev. Laws, sec. 3623) provides: The boards of
county commissioners of each county shall * * * cause to be prepared suitable and
well-bound books for the use of the assessor, in which the county assessor shall enter his
tax list and assessment roll, as hereinafter provided; and in which list and assessment roll
shall be assessed and included all taxes levied by authority of law for county purposes.
suitable and well-bound books for the use of the assessor, in which the county assessor shall
enter his tax list and assessment roll, as hereinafter provided; and in which list and
assessment roll shall be assessed and included all taxes levied by authority of law for county
purposes. Said book shall contain suitable printed heads, and be ruled to conform with the
form of the assessment roll, as provided by this act.
Italics are ours.
The assessment rolls, so-called, both for real and personal property and for proceeds of
mines, are hereinafter provided for in the act. All taxes levied by authority of law for
county purposes, includes taxes levied on proceeds of mines. (Rev. Laws, sec. 3621, 3687;
article 10 of State Constitution, Rev. Laws, sec. 352; City of Virginia v. Chollar-Potosi M.
Co., 2 Nev. 92; Goldfield Con. M. Co. v. State, 35 Nev. 186, 127 pac. 77.) The form of the
assessment roll for taxes on the proceeds of mines is as much provided by this act as is the
form of the assessment roll for real and personal property, exclusive of the proceeds of mines.
Section 3623, Rev. Laws, supra, is the only section requiring the county commissioners to
cause to be prepared and furnished books for the use of the county assessor, yet both sections
3633 and 3696 of the Revised Laws require both assessment roll to be entered in books
furnished by the county commissioners. It is clear, we think, that the two rolls combined
constitute the assessment roll of each county.
Respondent is entitled to the writ, and the same will issue upon application to the clerk
therefor.
____________
37 Nev. 183, 183 (1914) Thompson v. Tonopah Lumber Co.
[No. 1894]
I. S. THOMPSON, H. V. MOREHOUSE, and J. G. THOMPSON, Copartners, Respondents,
v. TONOPAH LUMBER COMPANY (a Corporation), Appellant.
[141 Pac. 69]
1. Appeal and ErrorReviewFindings of Trial CourtEvidence.
Where, in an action for attorney's services, the court found that plaintiffs were entitled to recover fees
on the basis of a schedule claimed to have been submitted by them to defendant before the services were
rendered, and that the schedule rates were the reasonable value of the services, the case would be so
considered on appeal, and the opinions of experts, placing a different value on the services rendered,
would not be regarded as controlling.
2. TrialFindingsDuty to Propose.
Though a party is entitled to specific findings regarding material issues on which a judgment is based,
if he prepares and submits them to the court with a request therefor, the court is not required to draw
them.
3. Appeal and ErrorFindings on Conflicting EvidenceReview.
The supreme court will not disturb the finding of the trial court on conflicting evidence, if there is any
substantial evidence to support it.
4. Appeal and ErrorTrial to CourtFindingsReview.
In cases tried to the court without a jury, the same consideration is given to the court's findings as to a
verdict, and the same rules apply as to reversing them on appeal, on the ground that they are contrary to
the evidence, as apply to a verdict.
5. Attorney and ClientAction for ServicesSchedule of Fees.
Where attorneys, before rendering services, submitted to defendant a schedule of fees that would be
charged, and the court, in an action for services rendered, found on expert evidence that the services were
reasonably of the schedule values, such finding was sufficient to sustain a judgment to the extent of such
values, without reference to whether the schedule was itself binding on defendant.
6. Attorney and ClientAction For ServicesEvidence.
Where, prior to the rendition of services by attorneys, they submitted a schedule of fees calling for a
retainer of $200 a month to cover office work, including adjusting claims or settling suits out of court, as
well as advising, drawing contracts, making forms, etc., and in an action for services testified that their
office work for defendant amounted to an average of two hours a day, the court did not err in admitting
evidence to show the value of such services.
7. InterestOpen Account.
In an action on an open account for attorneys' fees, plaintiffs cannot recover interest prior to
judgment, as provided by Rev. Laws, sec. 2499.
Appeal from the Seventh Judicial District Court, Esmeralda County; Theron Stevens,
Judge.
Action by I. S. Thompson and others, doing business as Thompson, Morehouse &
Thompson, against the Tonopah Lumber Company. Judgment for plaintiffs, and defendant
appeals. Modified and affirmed on condition.
P. E. Keeler, for Appellant.
Thompson, Morehouse & Thompson, in pro. per., for Respondents.
This is an action to recover a balance of $6,267.88, claimed to be due for legal services
rendered to appellant, Tonopah Lumber Company, between the 1st day of June, 1907, and the
1st day of April, 1908. In the bill of particulars, rendered by the respondents on demand, they
claimed $3,784.45 for services in sixteen mechanics' lien cases, $1,550 for six attachment
suits and one foreclosure case, and $2,233.43 for legal advice, office work, and making
seventeen liens between those dates. Indebtedness was denied and payment in full for
services rendered alleged by defendant. After an extended trial, findings were filed and
judgment rendered by the district court in favor of respondents for $2,544.93, and $296.90
interest on that sum from the 1st day of March, 1908, to the time of judgment. Appellant filed
a motion for specific findings as to the nature and value of the services rendered in each of
the cases itemized in the bill of particulars, as to whether appellant ever agreed to pay a
monthly retainer as demanded in this bill, and as to whether, on a specified date, O. W. Kay
was employed by and had authority to bind appellant, as contended by respondents on the
trial. This motion was denied, and in this connection it does not appear that appellant drew
or submitted to the court any findings or prepared findings for approval or disapproval.
in this connection it does not appear that appellant drew or submitted to the court any
findings or prepared findings for approval or disapproval.
It is urged that the court erred in denying the motion for specific findings on the items of
the bill of particulars; in refusing to find when, if at all, appellant agreed to pay respondents a
monthly retainer on the terms and conditions of the agreement; in admitting testimony
relating to conversations and transactions on February 18 and 19, 1908, with O. W. Kay, who
had been in charge of appellant's Goldfield yard, and exhibits based on such conversations; in
failing to find whether, on those dates, Kay was the authorized agent of appellant; in
admitting expert testimony as to the value of office work and legal advice occupying on an
average two hours daily; and in allowing interest prior to the date of judgment. It is also urged
that the decision is not supported by and is contrary to the evidence.
On November 3, 1907, the respondents made a proposed schedule of fees, addressed to the
Tonopah Lumber Company, which began in this manner: In order to settle and determine
our charges against your company, we submit the following proposition: The company to pay
our firm per month cash, $200, this to cover all services of the firm for all office work,
including drawing of mechanics' liens, making of contracts, forms, etc.
Following was a detailed statement of proposed charges for foreclosure suits, based on the
size of the claim, and specifying different charges for filing complaint, for settlement before
issue joined, and for services after issue joined. The respondents made the following
additional schedule of fees:
Goldfield, Nev., Jan. 10, '08.
Tonopah Lumber Co., Goldfield, Nevada. Gentlemen: At the request of your Mr. O. W.
Kay, of this place, we have revised our charges for services rendered you since the first day of
June, 1907.
Our retainer fee, to be $200 per month, which shall cover all office work, including
adjusting claims or settling suits out of court as well as advising, drawing contracts,
making forms, etc.
cover all office work, including adjusting claims or settling suits out of court as well as
advising, drawing contracts, making forms, etc.
Suits to Foreclose Liens.
1. On suits not exceeding $250, $25.00 on filing the complaint, and $25.00 on issue
joined; for attending trial and entering of judgment, such amount as the court may fix.
2. In suits involving more than $250, and not exceeding $1000, 10% of the amount on
filing complaint, and 10% additional on issue joined; for attending the trial and entering
judgment, such fee as shall be fixed by the court.
3. Suits above $1,000, 10% of amount upon filing complaint and $100 upon issue joined;
for attending trial and entering judgment, such fee as may be allowed by the court.
In paying the amount of fee fixed by the court, it is understood that the amount paid by
the corporation on filing complaint and on issue joined is to be deducted and only the balance
paid to counsel.
In an attachment or other suit, the same amount shall be allowed as is set forth in
paragraphs 1, 2 and 3, except that nothing additional is allowed for trial or judgment.
In all suits on mechanics' liens, the company will recover the full amount of the attorneys'
fees, and in all settlements before judgment the corporation has an opportunity to collect in
fees more than they are required to pay us. As to the contingent fee, the company will receiver
$25 for filing each lien to be collected from the party against whom the lien is filed.
We feel that our charges are very reasonable in this matter, and trust that this statement
will be accepted by your company. We are, very respectfully,
Thompson, Morehouse & Thompson,
By I. S. Thompson.
It appears that copies of these schedules were delivered or sent to Mr. Kay at Goldfield,
and to the Tonopah Lumber Company at Tonopah.
Under date of February 18, 1908, the respondents presented a bill against the company,
which Mr. Kay tried to adjust. He objected to charges on six of the lien claims because suits
on them had not been started, and they were eliminated in an amended bill presented or dated
the following day. At that time he had been superseded as manager for the company at
Goldfield, but was under agreement to take charge of the lumber business for the company at
Schurz, and he was trying to have these accounts adjusted with Mr. Walker, who had
succeeded to the Goldfield management for the respondents.
On behalf of the plaintiffs, lawyers testified that they deemed the services rendered by the
plaintiffs to be worth much more than the fees proposed by the schedule. Other lawyers, on
behalf of the defendant, testified that they considered the services worth less in various
instances than had been estimated by the witnesses for the plaintiffs.
According to the testimony of an earlier manager in charge of the Goldfield branch of the
Tonopah Lumber Company at the time of the commencement of the services rendered, he
understood, from what respondents said several months prior to the submission of the
schedules, that they were to charge $25 for drawing each lien, and that they would accept the
amounts allowed by the court, to be paid by the owner of the property against which the lien
was filed for the remainder of their fees. The president and manager testifies that this was
reported to and approved by him. If such had been the agreement, which was not found by the
court, it would not apply to or control in all of the cases in which charges were made, because
most of the suits brought, owing to settlement or for other reasons, or at the request of the
appellant, were not pressed to judgment, so that the respondents could recover a fee to be
fixed by the court. It is not shown that there was any agreement prior to the submission of the
schedules regarding the payment of fees to respondents in suits to be brought which might be
compromised or not brought to trial, and in which no fee would be determined upon
foreclosure.
to trial, and in which no fee would be determined upon foreclosure.
[1] As the court found that the respondents were entitled to recover fees for their services
on the basis of the schedules they submitted, and that such schedule rates were the reasonable
value of the services, we feel constrained to consider the case on this basis and to not regard
as controlling the opinions of experts placing a different value on the services.
[2] Although a party is entitled to specific findings regarding material issues upon which a
judgment is based if he prepares, submits to the court, and requests such findings, it is not
necessary for the court to draw the findings. Nor does it appear that otherwise there is any
prejudicial error by reason of the omission of the findings desired by appellant when the court
based its opinion and judgment upon a schedule of fees prepared by the respondents, which is
in the record, and which indicates the amounts to which the respondents are entitled for the
various services for which charges are made.
[3] The district court, acting in place of a jury, which could have been demanded by either
party, was the judge of the conflicting evidence, and its finding and conclusion thereon will
not be set aside on appeal. It is well settled that this court will not disturb the decision of the
trial court, if there is any substantial evidence to support it. (Tonopah Lumber Co. v. Nevada
Amusement Co., 30 Nev. 445, 97 Pac. 636; Turley v. Thomas, 31 Nev. 181, 101 Pac. 568, 135
Am. St. Rep. 667; Palmer v. Culverwell, 24 Nev. 114, 50 Pac. 1; Welland v. Williams, 21
Nev. 230, 29 Pac. 403; Craw v. Wilson, 22 Nev. 385, 40 Pac. 1076; Vietti v. Nesbitt, 22 Nev.
390, 41 Pac. 151; Crawford v. Crawford, 24 Nev. 410, 56 Pac. 94; Barnes v. Western Union
Telegraph Co., 27 Nev. 438, 76 Pac. 931, 65 L. R. A. 666, 163 Am. St. Rep. 776, 1 Ann. Cas.
346; Ford v. Campbell, 29 Nev. 578, 92 Pac. 206; Abel v. Hitt, 30 Nev. 93, 93 Pac. 227.)
[4] In cases tried by the court without a jury, the same weight and consideration is given
to the findings as to a verdict, and the same rules apply as to reversing them on appeal on
the ground of being contrary to the evidence as to a verdict.
same weight and consideration is given to the findings as to a verdict, and the same rules
apply as to reversing them on appeal on the ground of being contrary to the evidence as to a
verdict. (State v. Yellow Jacket M. Co., 5 Nev. 415.)
[5] Taking this view of the case, it is unnecessary to determine whether O. W. Kay was
authorized to bind the company in settling or fixing the fees of respondents on the 18th and
19th days of February, or previously, or whether the company became bound by the schedule
of fees by agreement of its authorized manager or by the acquiescence in continuing to accept
the services of the respondents for a considerable period after their submission of schedules,
which could be considered in the nature of an estoppel or treated by the court as mere
declarations by the respondents against their right to recover larger fees than they had
proposed in them, when the company could have regarded them as an assurance that no larger
fees would be charged. If it be admitted that Kay was without authority to bind or represent
the appellant on February 18, or at any other time, the conclusion of the district court,
supported by the expert evidence that the services were reasonably of the schedule values, is
sufficient to sustain the judgment to the extent of those values. As the case is controlled by
the application of the schedules to the services performed, his objections and admissions to
bills rendered by respondents are not regarded as harmful statements or evidence.
[6] Nor are we prepared to say that there was any error in admitting evidence regarding the
value of legal services and office work, occupying on an average two hours daily. Under the
opinion of the district court, the value of this service, including the drawing of liens and
assistance in collections, is controlled and covered by the schedule rate of $200 per month.
We do not find in the record evidence that these services were rendered for more than nine
months.
In the case brought by the appellant against the Nevada Amusement Company to
foreclose a lien, the fee of $300 allowed by the court was paid after the commencement
of this action.
Nevada Amusement Company to foreclose a lien, the fee of $300 allowed by the court was
paid after the commencement of this action. Under the expert evidence introduced by the
appellant, as well as that on behalf of the respondents, the reasonable value of their services
performed in that case on the trial and on the appeal is more than that amount, but by the
opinion the fee is also governed by the schedule, which limits it to the amount allowed by the
court. On this theory a judgment in excess of the schedule rates is not supported by the
evidence, although there is testimony which, if it had been approved by the court, would
authorize judgment for a larger amount.
On the schedule basis, the fees which respondents are entitled to recover are:
Lien Foreclosures Debt Fee
In the Hippodrome Theater case, which was
consolidated on trial with the proceeding to foreclose
the Marks mortgage on the same property, amount
fixed by the court on the application of respondents....
$786.00 ............................................................ $250.00
Charles Le Febvre, fee fixed by the court..........................
1,109.00............................................................ 200.00
Palm Grill, not filed, schedule fee $46.60, fee collected..
................................................................ 75.00
Nettie B. Issard, not filed..................................................
198.93 25.00
Vernal Ex. Mines Co., complaint filed, no issue..............
129.13................................................................25.00
Review Publ. Co., no filed................................................
260.00 26.00
Gold. Comb. L. & M. Co., complaint filed, no issue........
126.00................................................................25.00
Gold. N. Y. L. & M. Co., complaint filed, no issue..........
90.20..................................................................25.00
Feb. Atlanta L. & M. Co., complaint filed, no issue..........
242.65................................................................25.00
Blue Bull M. Co., complaint filed, no issue......................
453.89................................................................45.59
Nev. Greenwater M. Co., complaint filed, no issue..........
346.36................................................................34.64
Gold. Banner L. & M. Co., not filed..................................
193.08 25.00
Dave Wilson, complaint filed, no issue............................
404.00 40.40
Nelson Goldf. M. Co., complaint filed, no issue................
1,430.00............................................................ 143.00
M. Rogers, complaint filed, no issue..................................
204.00 25.00
Attachment Suits
Gold. Wilbur N. Co., complaint filed, no issue..................
404.00................................................................40.40
Donnelley, complaint filed, no issue..................................
370.00 37.00
Gold. Bar M. Co., complaint filed, no issue......................
911.00................................................................91.10
Goldf. Mfg. Co., complaint filed, no issue........................
1,775.00............................................................ 177.30
Lida Queen M. Co., complaint filed, no issue....................
714.00................................................................ 71.40
Attachment Suits.............................................. Debt
Fee
Attachment Suits Debt Fee
Diffenbaugh, complaint filed, no issue..............................
$68.00 $25.00
Nine months' retainer, drawing liens and office work........
........................................................... 1,800.00

________

$3,231.83
Less amount which the court found
had been paid to respondents............................... . 1,247.93

________

.........
$1,983.90
[7] The action being for an open account, the plaintiffs were not entitled to interest prior to
judgment. (Rev. Laws, sec. 2499; Vietti v. Nesbitt, 22 Nev. 399, 41 Pac. 151.)
If, within fifteen days, respondents file their consent to a modification of the judgment so
that it will award them $1,983.90 balance for their services, the motion for a new trial will be
denied, and the case remanded to the lower court, with instructions to modify the judgment
accordingly. Otherwise a new trial will be granted.
[NoteMcCarran, J., not having become a member of the court until after the argument
and submission of the case, did not participate in the opinion.]
____________
37 Nev. 191, 191 (1914) Frances-Mohawk Mining and Leasing Co. v. McKay
[No. 2080]
FRANCES-MOHAWK MINING AND LEASING COMPANY (a Corporation), Appellant,
v. W. L. McKAY, Respondent.
[141 Pac. 456.]
1. Principal and AgentAgreements Between Agent and OthersValidity.
An undisclosed agreement between the superintendent of a mining company, who acted as its agent
with respect to all workings within the ground of the company, and inspected the works of lessees, etc.,
and a lessee of the company, whereby the superintendent was to receive a percentage of the profits of the
lessee, is in its very nature a fraud upon the mining company because it would tend to place the
superintendent in a position antagonistic to his principal.
2. PleadingAdmissions in PleadingNecessity of Proof.
Where defendant's answer admitted a fact, proof of that fact was wholly unnecessary.
3. Principal and AgentLiability of AgentRights of Principal.
Where an agent enters into a contract with one who has dealings with his principal which gives him an
interest antagonistic to his duty towards his principal, the principal may recover from the agent any sum
so received.
4. Principal and AgentDuty of AgentRights of Principal.
Though, where an agent fully discloses the facts, his principal cannot require him to account for any
sum which the agent may receive from a third person as consideration for an agreement with such third
person which places him in a position antagonistic to his principal, yet, if the agent fails to disclose all of
the facts pertaining to the transaction, the principal may recover any sum received by the agent.
5. Principal and AgentRights of PrincipalActionsEvidence.
In an action by a mining company to recover from its agent sums received from a lessee under an
agreement which caused the agent to assume a position antagonistic to the company, evidence held
sufficient to show that the mining company was not fully informed as to the agreement.
Appeal from the Seventh Judicial District Court, Esmeralda County; Peter J. Somers,
Judge.
Action by the Frances-Mohawk Mining and Leasing Company against W. L. McKay.
From a judgment for defendant, plaintiff appeals. Reversed and remanded.
H. V. Morehouse, for Appellant.
Detch & Carney, for Respondent.
The appellant company was lessee of the Goldfield Mohawk Company, in the Goldfield
mining district, and as such mined and operated under its lease a block of ground contiguous
to the lease, mined and operated by the Curtis Bros., also lessees of the Goldfield Mohawk
Mining Company. From the record it appears that the workings of the Curtis Bros. on their
lease had approached the lines of the lease operated by the appellant company, and each of
the leaseholders had about forty days more in which to operate under the lease from the
appellant company. It appears from the record that the workings of the Curtis Bros. were in
close proximity to an ore body which, by reason of the condition and position of the
workings of the appellant company, could not have been taken out by the appellant
company during the term of its lease. On the 21st of November, 1906, the appellant
company entered into an agreement with the Curtis Bros., whereby the latter were
permitted, through their workings, to mine, work, break, and extract ore from the
premises and lease of the appellant company, the ore extracted to be shipped to the
smelter or mill in the name of the Frances-Curtis Mohawk Lease, and the returns to be
made to the banking house of John S. Cook & Co., at Goldfield.
body which, by reason of the condition and position of the workings of the appellant
company, could not have been taken out by the appellant company during the term of its
lease. On the 21st of November, 1906, the appellant company entered into an agreement with
the Curtis Bros., whereby the latter were permitted, through their workings, to mine, work,
break, and extract ore from the premises and lease of the appellant company, the ore extracted
to be shipped to the smelter or mill in the name of the Frances-Curtis Mohawk Lease, and the
returns to be made to the banking house of John S. Cook & Co., at Goldfield. From the net
returns there was to be deducted 22 l/2 per cent due to the Goldfield Mohawk Mining
Company; secondly, 20 per cent to the appellant company; and 57 l/2 per cent to the Curtis
Bros.
Further the agreement was as follows: The officers and agents of the parties of the first
part shall at all times have access to and through the workings of the party of the second part
for inspecting, surveying, and sampling the premises being worked under and by virtue of this
contract by the parties of the second part. This contract may be terminated by either party by
giving the other party twenty-four hours' notice of its intention to terminate the same; and the
parties of the second part, shall thereupon, discontinue all work in said Frances-Mohawk
ground, but they shall have the right to ship all ore then broken, and the same shall be settled
as hereinabove provided.
The question of agency in this case is one vital to the issue and, were it not especially
admitted in the answer of respondent, it might be questionable as to whether or not, as
superintendent, respondent was also the agent for the appellant company; but, being admitted
by the answer, it must be considered as settled so far as this case is concerned.
From the testimony of the respondent, and also from the testimony of the witness Peters,
called in behalf of respondent and who it appears was interested in the Curtis Bros. lease, it
appears that an agreement was entered into between the Curtis Bros. and respondent, by
the terms of which agreement respondent was to act as consulting engineer for the Curtis
Bros.
entered into between the Curtis Bros. and respondent, by the terms of which agreement
respondent was to act as consulting engineer for the Curtis Bros. in their mining operations
carried on within the lease of the appellant company. As to this transaction the respondent
McKay testified:
A. Well, I think it was in the morning, or early in the afternoon, that I met Mr. Curtis and
Mr. Peters, manager, and they said: Now, Mac, we are getting out of the hole. You have
treated us nice, and we are going to give you an interest in the lease, and we want you to be
our consulting engineer.' Of course, that was merely a figurehead, that consulting engineer.
Q. You acted as consulting engineer then for the Curtis Bros. lease? A. Oh, yes; I used to
help them out.
Mr. Peters, testifying on the same subject, said:
A. Well, as I remember, we were in the Curtis Mohawk lease one morning, and at that
time we were not very familiar with the different conditions that we were meeting every day,
and the final sum and substance of it was that we were to use Mr. McKay for a 5 per cent
interest in a consulting capacity.
Q. Did you make that proposition to Mr. McKay? A. I did.
Q. And what was Mr. McKay to do for that 5 per cent? A. Give us the benefit of his
knowledge on the ground up above.
On cross-examination the witness McKay testified as follows:
Q. And as you were superintendent of the Frances-Mohawk you would have supervision
of the sublease, too, to see that it was properly conducted to obtain the greatest advantage to
the Frances-Mohawk Company? A. Yes, sir.
Q. And in such position as superintendent you would naturally be called in consultation
with the superintendent of the Curtis Bros. sublease? All of that would be in the line of your
duty flowing out of your position as superintendent of the Frances-Mohawk Company? A.
Yes, sir.
superintendent of the Frances-Mohawk Company? A. Yes, sir.
Q. If therefore a drift of a winze, or stoping, or anything of that kind, had to be done on
the subleased ground of the Curtis Bros., it would be your duty, as superintendent of the
Frances-Mohawk lease, to see that that work was properly done on the subleased ground? A.
Yes, sir.
It nowhere appears in the record in this case that the appellant company was apprized of,
or had any knowledge of, the exact agreement between its superintendent, respondent herein,
and its sublessee, excepting as appears from the testimony of respondent himself, and in
testifying as to that he says:
I told Mackenzie (Mackenzie was general manager of the appellant company) that they
had made me this offer.
Q. What did he say? A. He didn't say anything.
It nowhere appears that any information was conveyed to the appellant company, or to its
representatives by the Curtis Bros., or their representatives, as to the understanding or
agreement entered into between the Curtis Bros. and McKay. As a result of the sublease, the
Curtis Bros., during the forty days or thereabouts in which that lease was operated, extracted,
from the ground covered by the Frances-Mohawk lease, ore to the value of approximately
$185,000. The appellant company received as its share under the agreement approximately
$57,000.
It is admitted by the respondent that, by reason of the agreement entered into between
himself and the Curtis Bros. for a 5-per-cent interest, he received $3,187. The respondent in
this case was, according to his testimony and his pleadings, the superintendent and agent for
the appellant company and in their employ at a salary of $300 per month. His duties under his
employment required that he should not only superintend the workings of the appellant
company during the term of its lease, but should also, in the interest of the appellant
company, oversee and superintend the workings of the sublease conducted by the Curtis
Bros., during the term in which that lease would be operated. The appellant company was
interested in the workings of the Curtis Bros. as long as their workings were conducted
within the ground of the appellant company. The respondent was invested with power
and authority to act for them in so far as the cancelation of the lease of the Curtis Bros.
was concerned. His principal was interested in every pound of ore extracted by the Curtis
Bros. from the ground covered by the Frances-Mohawk lease.
sublease conducted by the Curtis Bros., during the term in which that lease would be
operated. The appellant company was interested in the workings of the Curtis Bros. as long as
their workings were conducted within the ground of the appellant company. The respondent
was invested with power and authority to act for them in so far as the cancelation of the lease
of the Curtis Bros. was concerned. His principal was interested in every pound of ore
extracted by the Curtis Bros. from the ground covered by the Frances-Mohawk lease.
Moreover, the appellant company was interested in the manner and method in which mining
operations were conducted under this sublease, and to that extent, according to the testimony
of respondent, it was his duty to superintend and oversee those workings.
[1] By entering into the agreement with the Curtis Bros., by reason of which agreement
respondent was to receive a percentage of the gain from the sublease, respondent was
assuming a dual capacity and was assuming the obligation of serving two masters whose
interests were to a greater or less extent opposed to each other. He was in the employ of the
appellant company at a regular salary, and was their superintendent and agent in all of the
workings within the ground of the appellant company. Under his employment and agency it
was his privilege and duty to enter the workings of the Curtis Bros. for the purpose of
inspecting, surveying, and sampling the premises being worked, and all this he was presumed
to do in the interest of his principal, appellant herein.
Any agreement entered into between respondent and the Curtis Bros., which would by its
very nature cause him to relax his vigilance and care over the interests of his principal, would
as a matter of course be antagonistic to the welfare of his principal, and hence would be a
fraud upon the latter, unless the principal was fully apprized of the nature and extent of the
agreement.
[2] Again, it must be observed, in passing, that the question of agency in this case is settled
by the pleadings, inasmuch as it is alleged in the complaint of appellant, and admitted in
the answer of respondent.
inasmuch as it is alleged in the complaint of appellant, and admitted in the answer of
respondent. If the pleadings in this case denied agency and admitted that the respondent was
in the service of appellant merely in the capacity of superintendent, a different question might
arise as to the right of the master to control the services of the servant, or to derive gain
therefrom; but, as that question is not before us it is not to be considered in this case.
Counsel for respondent contend that the question involved in this case is one of master and
servant, rather than principal and agent; but this contention we assume is answered by
respondent's own pleadings, wherein he admits agency. Moreover, it is answered by the
testimony of respondent wherein he says:
To tell you the truth, I came within a very small margin of forfeiting their lease as much
as a dozen times. I had the power to forfeit their lease on twenty-four hours' notice.
Q. But you didn't forfeit it? A. No, sir.
Q. But the lease went on and was completed, and afterwards you felt such a deep interest
in the money that you sued for $187 balance, did you not? A. I always want all that is coming
to me.
[3-4] The law will not tolerate an agreement or understanding between one principal and
the agent of another, by which agreement such agent is to receive a commission or reward,
which gives the agent an interest against his duty to his principal. In other words, an agent
cannot be allowed to put himself in a position in which his interest and his duty will be in
conflict, and, if he does, any profit that he may derive in the execution of his new assumed
position must be accounted for to the principal who may claim it as a debt for money received
for his use. Any gratuity to an agent, after he has entered into his agency, given to him for the
purpose of influencing the execution of his agency, must be accounted for to his principal.
(Stoner v. Weiser, 24 Iowa, 434; Moore v. Mandlebaum, 8 Mich. 433; Yeoman v. Lasley, 40
Ohio St.
40 Ohio St. 190; City of Findlay v. Pertz, 66 Fed. 427, 13 C. C. A. 559, 29 L. R. A. 188.)
In Wald's Pollock on Contracts (3d ed.), the author in discussing this principle says: The
rule is not arbitrary or technical, but rests on the principle that an agent cannot be allowed to
put himself in a position in which his interest and his duty are in conflict, and the court will
not consider whether the principal did or did not suffer any injury in fact by reason of the
dealing of the agent; if the safety of mankind requires that an agent shall be able to put his
principal to the danger of such an inquiry as that. (Wald's Pollock on Contracts, 3d ed. 389.)
The rule heretofore asserted and supported by authorities cited is not applicable in an
instance where the principal has full knowledge and acquiesces in the transactions entered
into by the agent; but where the agent derives a profit or advantage in dealing with that which
constitutes the subject-matter of his agency, and fails to disclose to his principal all of the
facts pertaining to his transactions, it is the privilege of the principal to demand an accounting
of whatever profits the agent may ultimately realize from such dealings. (Labatt, Master and
Servant, vol. 5, p. 6338; Bracken v. Jackson, 140 N. W. 892; Leonard v. Omstead, 141 Iowa,
485, 119 N. W. 973.)
[5] It is manifest from the record in this case that the appellant company had little, if any,
knowledge of the agreement entered into between its superintendent, respondent herein, and
its sublessee, the Curtis Bros. It is manifest also from the record that none of the conditions or
terms of the agreement were made known to appellant either by the respondent or by the
Curtis Bros.
In our judgment the trial court correctly instructed the jury, as to the law applicable to this
case; but it is manifest that the jury in rendering the verdict for the defendant, respondent
herein, ignored the instructions of the court. The cause should be remanded for a new trial.
It is so ordered.
____________
37 Nev. 199, 199 (1914) Beco v. Tonopah Extension Mining Co.
[No. 2089]
P. BECO, as Administrator of the Estate of P. Derich, Deceased, Respondent, v. TONOPAH
EXTENSION MINING COMPANY (a Corporation), Appellant.
[141 Pac. 453]
1. New TrialGroundsMemorandum of ErrorsTime for ServiceExtension of
TimeValidity.
An ex parte order, extending, as authorized by Rev. Laws, sec. 5322, the time within which a mover for a
new trial shall serve on the adverse party a memorandum of exceptions and errors, though properly
granted, is without effect until notice thereof has been given the adverse party, as required by district court
rule 36.
2. CourtsRules of CourtValidity.
The rules of the district court have the force and effect of statutory provisions and must be followed.
Action by P. Beco, as administrator of P. Derich, deceased, against the Tonopah Extension
Mining Company. From a judgment for plaintiff, defendant appeals. Affirmed.
Key Pittman and F. K. Pittman, for Appellant.
H. R. Cooke, for Respondent.
In this case the respondent moved in the trial court to strike the memorandum of
exceptions upon the ground that the same was not filed or served upon respondent within ten
days after the date of service of defendant's notice of motion for a new trial, and upon the
further ground that the memorandum of exceptions and errors was not filed or served upon
respondent within the additional thirty days allowed by the court in which for appellant to file
and serve the exceptions and errors.
It appears from the record that on February 3, 1913, the attorney for appellant moved the
trial court for thirty days additional to the time allowed by law in which to file and serve his
memorandum of exceptions.
which to file and serve his memorandum of exceptions. At the hearing of this motion,
attorney for respondent was present in court and resisted the motion. The court, however,
made an order granting additional time. From the record it appears that on February 24 an
order was made by the trial court on the ex parte application of the attorney for appellant, by
which order thirty days additional to the time already granted was allowed in which to file
memorandum of exceptions. On March 31, pursuant to ex parte application of the attorney for
appellant, an additional thirty days was granted, and again on April 30, pursuant to an ex
parte application of the attorney for appellant, the court ordered that the appellant have
twenty days additional, in addition to the time already allowed, in which to file and serve
memorandum of errors. Again, on May 19, 1913, pursuant to the ex parte application of
attorney for appellant, the court made an order that the appellant have until and including the
22d day of May, 1913, in which to file and serve memorandum of errors and exceptions. As
already stated, all of the applications for additional time were made ex parte, and the court
granted the additional time on the several applications, in the absence of the attorney for
respondent, or any representative of respondent.
It is admitted by the attorney for the appellant that no notice was given to respondent's
attorney, or to any representative of the respondent, as to the several orders made by the trial
judge in extending the time in which to file and serve memorandum of exceptions, and the
only time at which the respondent was represented by his attorney in the making of such
orders was on the first occasion, namely, on February 3, 1913, at which time the record
discloses that the attorney for respondent opposed the order extending the time.
The appellant in this case, in moving for a new trial, relied upon the seventh subdivision
under section 378 of the civil practice act, being section 5320 of the Revised Laws, which is
as follows: "7.
7. Error in law occurring at the trial and excepted to by the party making the application.
Section 380 of the civil practice act, being section 5322 of the Revised Laws, is as follows:
Where the motion is made upon the seventh cause mentioned in the preceding section, the
party moving shall, within ten days after the service of notice of motion for a new trial, unless
further time be obtained by stipulation or order of the court, serve upon the adverse party a
memorandum of such errors excepted to as he intends to rely on upon the motion, and such
memorandum shall contain a verified statement of his attorney that in the judgment of such
attorney the exceptions so relied upon are well taken in the law. No other errors under
subdivision 7 shall be considered either upon the motion for a new trial or upon appeal than
those mentioned in such memorandum.
Respondent's motion to strike in this case is based upon rule 36 of the rules of the district
court of the State of Nevada, which is as follows: No order, made on ex parte application
and in the absence of the opposing party, providing he has appeared, granting or extending
the time to file any paper or do any act, shall be valid for any purpose, in case of objection,
unless written notice thereof is promptly given to such opposing party. Such notice shall be
given as other notices are given, or may be given by registered mail sent to the last known
address of the attorney for such party, or, if he has no attorney, to such party himself. If the
address of such attorney or party be not known, then the notice may be addressed to such
attorney or party in care of the clerk.
This rule, in its present condition, was adopted October 25, 1911, and became effective
April 1, 1912.
[1] As to whether or not the trial court had the right to extend the time in which for
appellant to file his memorandum of exceptions on ex parte application is not before us in
this case, and therefore we will not pass upon it. Suffice it to say that the court did make the
order on several occasions, as appears from the record in this case, on the ex parte application
of attorney for appellant.
appellant. The record is silent as to any grounds urged by the attorney for appellant to
authorize the court in granting and entering the successive orders extending time.
The first application, on the part of appellant, was made in the presence of the attorney for
respondent, and the application was on that occasion resisted by attorney for respondent. As
to the succeeding orders, no notice appears to have been served upon attorney for respondent,
either as to the application for the order or as to the obtaining of the order after the same had
been made and entered by the trial judge.
The trial judge, in denying respondent's motion to strike the memorandum of exceptions
and statement, alludes to the inability of the official reporter to prepare the transcript in the
case due to pressure of business. This, however, does not appear from the record, save and
except as it appears in the written decision of the trial judge and in the brief of attorney for
appellant. On the hearing of the motion to strike, attorney for appellant offered no evidence
whatever that would have indicated that the several orders made were made by reason of the
inability of the official reporter to produce the transcript. The inability of the reporter to
prepare the transcript, if a showing to that effect is properly made, or if the judge had personal
knowledge of such condition, might be a sufficient ground for extending the time, but this
would not excuse the party, in whose favor the time had been extended, from complying with
the provision of the rule as to giving notice to the opposite party. The giving of notice is a
prerequisite to the validity of the order.
Attorney for appellant, both in his statement to the trial court, as appears from the record,
and in his brief on motion to strike, admits the existence of the rule and further admits
noncompliance with the rule and rests his argument on the assertion that the rule is too
technical to be followed. This rule, like other rules of procedure adopted under statutory
sanction, has as its object the promulgation of a system for the speedy and orderly procedure
of litigated matters to the end that controversies brought into courts may be terminated
with reasonable diligence and expedition.
controversies brought into courts may be terminated with reasonable diligence and
expedition. This rule is not of the character, nor is it of the peculiarity that would require it to
be suspended or waived in a case of this kind in order to promote justice.
Assuming for the time being that the trial judge had acted properly in granting the
extensions of time on ex parte application and without any reason or cause being made of
record, the rule operates imperatively that the opposite party to the litigation should have
notice of the making and entering of such an order before the order itself became valid for
any purpose. In other words, the orders, as made by the trial judge upon the ex parte
application of attorney for appellant extending the time fixed by statute in excess of that
contemplated by the first order, had no force or effect and were invalid unless the rule of the
court was complied with to the extent of giving notice to the opposite party.
[2] The rules of the district court have received the sanction and enforcement of this court
on several occasions, and that the rules have the same force and effect as if they were
incorporated in the statutory provisions was asserted by this court in the case of Haley v.
Eureka County Bank, et al., in which case Chief Justice Hawley, speaking for the court,
quoted approvingly from decisions rendered by the Circuit Court of the United States
(Seymour v. Phillips, 7 Biss. 462, Fed. Cas. No. 12,689), and by the Supreme Court of the
United States (McDonald v. Smalley, 1 Pet. 624, 7 L. Ed. 287), to the effect that the rules
established by the court, in pursuance of law, become to all intents and purposes of the same
force and effect as the law itself and ought to be observed. (Haley v. Eureka Bank, 20 Nev.
410, 22 Pac. 1098.)
As early as 10th Nev., this court, in the case of Lightle v. Ivancovich, speaking through
Chief Justice Hawley, quoted approvingly from the case of Hagar v. Mead, 25 Cal. 600, to
the effect that rules of the court, established, as they are, for the purpose of equal and exact
justice and promoting a uniform and established practice, should be regarded and held to be
as binding and obligatory upon litigants as any other rule of civil conduct.
be regarded and held to be as binding and obligatory upon litigants as any other rule of
civil conduct. (Lightle v. Ivancovich, 10 Nev. 41.)
In the case of Adams v. Rogers, 31 Nev. 150, 101 Pac. 317, Mr. Chief Justice Talbot, in the
dissenting opinion, reviewed the entire field of decisions by this court, applicable to the rules
of court, and said: The court ought to observe its own rules, and it should not hesitate to
correct any erroneous orders made in contravention of them.
The order by the trial court extending time upon the application of attorney for appellant
was ineffectual, inasmuch as it was invalid until notice had been properly served upon the
absent adverse party. It requires notice properly served to give the court order any force or
effect whatever. It being admitted in this case that no notice was served upon the attorney for
respondent as to any of the orders made by the trial court extending time on the ex parte
motions of appellant, it follows that the orders as made by the trial court were invalid, and,
being invalid, no time was extended by reason of them, save and except the time extended by
the court in its first order, at which time attorney for respondent was present, resisting.
The memorandum of errors and statement, not having been filed within the time allowed
by law, or within the time allowed by the court in its first order extending time, had no place
in the record, and the motion to strike should have been granted. The motion to strike as made
by respondent is hereby granted.
There being no errors assigned as to the judgment roll, the order of the trial court, denying
appellant's motion for a new trial, and the judgment as entered by the trial court, are affirmed.
Let the order be entered accordingly.
Per Curiam:
Rehearing denied.
____________
37 Nev. 205, 205 (1914) Golden v. McKim
[No. 2092]
JAMES GOLDEN, Appellant, v. H. A. McKIM,
Respondent.
[141 Pac. 676]
1. Appeal and ErrorAppeal for DelayAffidavit.
Where appellant filed an affidavit that he had been taken seriously ill about the time the appeal was
taken, and was confined to a hospital for about two months thereafter, and was not aware for about a year
and a half that his appeal had not been duly prosecuted, and that he did not know, prior to that time, that
he was without attorney in the supreme court, the court will not dismiss the appeal on the ground that it
was taken for delay merely.
2. DamagesLiquidated DamagesPenaltiesConstructionContracts.
A stipulation in a contract for excavation and for removal of the material excavated, and the
construction of a stone foundation wall for $1,156, that for the performance of the covenants the parties
bind themselves each, and to the other, in $800 liquidated damages to be paid by the failing party,
provides for a penalty for breach and not for liquidated damages, for the damages for a breach are
capable of ascertainment with reasonable accuracy.
3. DamagesLiquidated DamagesPenaltiesConstruction.
Though both parties to a contract sought to enforce a provision stipulating for a penalty as a
stipulation for liquidated damages, the court must determine the nature of the stipulation, and, if it
provides for a penalty only, will restrict both parties to actual damages sustained by a breach.
Action by James Golden against H. A. McKim. From a judgment for defendant, plaintiff
appeals. Reversed and remanded for new trial.
Dixon & Miller, for Appellant.
J. A. Sanders, for Respondent.
This is an action for damages for alleged violation of a written contract entered into
between appellant and respondent. For a consideration of $1,156, to be paid therefor by
respondent, appellant agreed to excavate to the depth of ten feet and to remove from a certain
lot on Main Street, in the town of Tonopah, all earth, rock, or other debris caused by such
excavation and to construct a stone foundation wall of specified dimensions and of a
prescribed character of stone and mortar.
on Main Street, in the town of Tonopah, all earth, rock, or other debris caused by such
excavation and to construct a stone foundation wall of specified dimensions and of a
prescribed character of stone and mortar. The contract was dated April 24, 1906, and it was
agreed upon the part of appellant that the work should be completed within thirty days of the
date of the contract. The contract also contained the following provision: And for the true
and lawful performance of each and all the covenants and agreements above mentioned, said
parties bind themselves each, and to the other, in the sum of eight hundred dollars ($800.00)
as liquidated damages to be paid by the failing party.
Plaintiff, appellant herein, alleged that he had nearly completed the work in accordance
with the contract, and would have so completed it within the time agreed upon but for the
alleged fact that on or about the 20th day of May, 1906, defendant wrongfully, and without
cause, entered upon the premises and prevented plaintiff from completing the work. Plaintiff
demanded judgment for the sum of $1,156, the contract price of the work, and in pursuance
of certain allegations of damages resulting from injury to his reputation as a contractor, by
reason of the acts of defendant, prayed that the $800 liquidated damages prescribed in the
contract be allowed therefor, and further, in this connection, alleged: That the said $800 was
and is not a penalty or in the nature of a penalty, but was and is the actual damages liquidated
and agreed upon by the said parties to the contract aforesaid.
Defendant denied the allegations of the complaint, excepting as to the execution of the
contract; alleged in a cross-complaint that plaintiff failed to excavate the lot to the depth
agreed upon or to construct the wall of the dimensions or with the kind of material agreed, so
that he was compelled to further excavate the lot and to remove the wall constructed by
plaintiff and to rebuild the same at an expense to himself of $1,500. Defendant alleged
damage to his business by the delay occasioned by the breach of said contract in the sum of
$1,000.
Judgment against plaintiff was demanded for the sum of $1,344 damages for the breach of
said contract, and the further sum of $800 liquidated damages as provided in said contract
and costs of this action.
[1] Issue was joined in this case, by the filing of the answer, February 24, 1908. Trial, for
some reason, was not begun until July 11, 1912. Decision was rendered August 14, 1912.
Transcript on appeal was filed in this court October 11, 1913. Counsel for plaintiff who tried
the case in the court below, upon filing the transcript, filed also with the clerk a notice that he
did not represent the appellant further than in perfecting the appeal. No briefs were filed
within the time allowed by the rules of this court. Subsequently on February 13, 1914, the
firm of Dixon & Miller, upon written request of appellant, filed an appearance in the case on
appeal. An affidavit of appellant was also filed setting forth that appellant was taken seriously
ill about the time the appeal was taken, and was confined in a hospital for about two months
thereafter, and was not aware until about the 11th of February, 1914, that his appeal had not
been duly prosecuted; that he did not know prior to such time that he was without
representation in this court. No counter affidavit was filed. The case has been briefed and
orally argued upon the merits, and upon the question of a motion to dismiss upon the ground
that the appeal has been taken for delay merely. In view of the affidavit of appellant, we
would not, we think, be justified in dismissing the appeal upon the ground that it was taken
merely for delay. There was certainly great delay in bringing the case on for trial, but it does
not appear whose fault this was; nor is any question raised upon appeal relative to the delay in
the lower court. The transcript contains nearly a thousand pages of testimony and is
apparently entirely disproportionate to the issues involved in the case.
[2] The court filed a memorandum decision in the case August 14, 1912, which, in part,
reads:
Facts found: The facts are as stated in the affirmative answer, counterclaim and
cross-complaint of the defendant.
answer, counterclaim and cross-complaint of the defendant.
Conclusions of law reached: That the defendant have judgment for the sum of $800
liquidated damages, and for his costs.
Wherefore judgment may be entered accordingly. Counsel for defendant is hereby
directed to prepare complete findings of fact and conclusions of law, and to submit the same
for approval.
From the findings of fact and conclusion of law subsequently filed, we quote: That by
reason of plaintiff's failure to comply with the terms and conditions of said contract, the
defendant in order to perfect the same according to its terms, after the time for plaintiff to
perform the same had expired, entered into the said premises and tore out the foundation
attempted to be constructed by plaintiff and excavated the premises to the depth required by
said contract and erected therein a foundation, and that by reason of plaintiff's failure to make
said excavation and for the defendant to complete the same he was forced to pay the sum of
$158.12, and to tear out the foundation he was forced to pay the sum of $108, making a total
of $266.12. That the plaintiff excavated 379 cubic yards of dirt from said premises at a cost of
$265.30, which was used and appropriated by the defendant. That the contract made and
entered into on the 24th day of April, 1906, by and between the plaintiff and the defendant, in
addition to the terms thereof, provides that for the true and lawful performance of each and all
the covenants and agreements mentioned said parties bind themselves each and to the other in
the sum of $800 as liquidated damages to be paid by the failing party.
We think it appears from the decision, and from the findings of fact and conclusions of
law subsequently filed, that the court below based its judgment on the provisions in the
contract for liquidated damages. Counsel for respondent in his brief quotes the following
ruling upon objection made during the progress of the trail: The objection is overruled, but
the amount of damages claimed will be disregarded except as to the $S00 item; that is, no
attention to be given to the $1,000 item."
will be disregarded except as to the $800 item; that is, no attention to be given to the $1,000
item.
Counsel for respondent, however, in his brief says: At no time during the trial, nor does
the evidence disclose that the court gave judgment for $800 as a penalty pure and simple,
found the same from the different items of damages alleged by McKim to have accrued by
reason of the breach of the contract.
This statement of counsel does not seem to be supported by the findings contained in the
record. There is no finding of the amount defendant paid for the completion of the work
according to the original contract. There is a finding that defendant paid out $158.12 to
complete the excavation and an additional amount in the sum of $108 for tearing out the
foundation constructed by plaintiff. This is virtually offset by the finding that defendant paid
out $265.30 for excavating 379 cubic yards of dirt, which was used and appropriated by
defendant. There is no other finding upon which a judgment for defendant can be predicated
excepting the finding relative to the provision in the contract for liquidated damages in the
sum of $800.
It appears from the evidence that an oral agreement was reached between the plaintiff and
defendant on or about the 19th of May, 1906; that on the last-named date the plaintiff
commenced work on the excavation. It was understood that the contact was subsequently to
be reduced to writing. The written contract was executed on the 24th day of May following. It
does not appear from the evidence that, at the time the oral agreement was entered into or at
the time the written agreement was executed, anything was said with reference to liquidated
damages. With reference to this provisions of the contract, the defendant testified: The $800
would mean penalty for failing to comply with the provisions of that contract. Had he not
completed it within thirty days, I would consider that he should give me $800 for failing to
build a good and sufficient wall as named in that contract.
It is quite clear from the character of the contract and the circumstances of its execution
that it is in effect a penalty. The damages specified are two-thirds as large as the whole
contract price for the work and are entirely disproportionate to the breach. Ordinarily
damages resulting from a breach of a contract of this kind are capable of being ascertained
and estimated within a reasonable degree of accuracy. There is no showing of any special
reason, understood by the parties at the time, why a provision for liquidated damages should
be inserted in the contract.
As to whether a sum agreed to be paid as damages for the violation of an agreement shall
be considered as liquidated damages or only as a penalty is held to depend upon the meaning
and intent of the parties as gathered from a full view of the provisions of the contract, the
terms used to express the intent, and the peculiar circumstances of the subject-matter of the
agreement. (13 Cyc. 90.)
Where the damages are capable of being known and estimated, the sum fixed upon as
damages will be treated as a penalty, although declared to be intended as liquidated damages.
Where the parties have agreed on the amount of damages, ascertained by fair calculation and
adjustment, and have expressed this agreement in clear and explicit terms, the amount so
fixed will be treated as the true damages and not as a penalty; but, if the agreement be
unconscionable, the court will not be bound by its terms as to the rule of damages. * * *
Whatever the nature of the contract or the terms in which it has been expressed, the courts
will as a rule construe the damages as a penalty, where they are capable of being accurately
ascertained. (13 Cyc. 93-95.)
In Richardson v. Jones & Denton, 1 Nev. 408, this court said: The law, however, only
authorizes the recovery of the actual damage sustained upon the breach of a contract of this
character; and if no actual damaged is proven none can be recovered, though a breach of
contract is shown.
shown. The violation of an agreement in which a penalty for breach is specified does not,
therefore, necessarily authorize a recovery of such penalty. In an action upon such an
instrument the plaintiff should not only prove the contract and the breach by defendants, but
in addition thereto it is necessary to establish actual damages resulting from such breach, or
he can only recover a mere nominal sum.
See, also, Fitzpatrick v. Cottingham, 14 Wis. 219; Sedgwick on Damages, secs. 389-427.
[3] The fact that the plaintiff in his complaint sought to recover against defendant upon the
provision of the contract for liquidated damages and specifically alleged that the said $800
was and is not a penalty or in the nature of a penalty, but was and is the actual damages
liquidated and agreed upon, ought not to prevent, we think, plaintiff being relieved from the
imposition of the penalty, when it clearly appears from the evidence that the provision was
intended, at the time of making the contract, as a penalty. The fact that the provision applied
to both parties is in itself evidence that it was intended as a penalty. We might assume in this
case that, each of the parties having sought to enforce this penal provision against the other,
the court will not attempt to relieve either from its provisions. The true functions of the court,
however, is to do justice between the parties, and that can only be done by restricting both to
the rule of actual damages.
As the judgment in this case is based on a penalty provision in the contract rather than
upon actual damages found, the judgment must be reversed, and a new trial ordered. As the
evidence taken is voluminous and has been transcribed, doubtless at great expense, the parties
should be permitted, if they so desire, to resubmit the case upon the evidence already taken
for the purpose of having the same considered with the view of a determination of the amount
of actual damages which either party may be entitled to.
The judgment and order appealed from are reversed, and the cause remanded for a new
trial.
Per Curiam:
Petition for a rehearing denied.
____________
37 Nev. 212, 212 (1914) Worthington v. District Court
[No. 2112]
ALFRED WORTHINGTON, Relator, v. THE DISTRICT COURT OF THE SECOND
JUDICIAL DISTRICT OF THE STATE OF NEVADA, And HON. T. F. MORAN,
Judge of Said Court, Respondents.
[142 Pac. 230]
1. StatutesTitleSufficiency.
The title of an act entitled An act relating to marriage and divorce is sufficient, within Const. art.
4, sec. 17, providing that each law shall embrace but one subject and matters properly connected
therewith, to justify provisions in the body of the act prescribing the length of residence required before
parties may apply for a divorce.
2. StatutesTitleSufficiency.
Notwithstanding Const. art. 4, sec. 17, providing that each law shall embrace but one subject and
matters properly connected therewith, a statute may contain several provisions, provided they relate to the
subject expressed in the title, or are properly connected therewith.
3. Constitutional LawStatutesValidity.
That a statute has for years been enforced by the courts, without its constitutionality being challenged,
may be considered as a recognition of its constitutionality, and courts will seldom entertain questions of
the constitutionality of a statute recognized as valid in the adjudication of rights, and when the invalidity
of the statute would lead to serious consequences.
4. StatutesTitleAmendments.
The act of February 15, 1875 (Stats. 1875, c. 22), entitled An act to amend an act entitled An act
relating to marriage and divorce, approved November 28, 1861,' and containing only three sections,
purports, by section 1, to amend section 22 of the original act by reenacting the section as changed.
Sections 2 and 3 are the ordinary repeal of inconsistent laws, and a provision as to when it shall take
effect. The act of February 20, 1913 (Stats. 1913, c. 10), entitled An act to amend an act entitled An act
to amend an act relating to marriage and divorce, approved November 28, 1861,' purports to amend
"section 22" by reenacting it with the changes affected by the amendment and
repealing conflicting acts.
section 22 by reenacting it with the changes affected by the amendment and repealing conflicting acts.
Held that, in view of Const. art. 4, sec. 19, providing that no law shall be revised or amended by
reference, but the act or section as amended shall be reenacted and published, the act of 1875 did not
repeal section 22 of the original act, and the act of 1913 was not void as attempting to amend section 22,
after such repeal, but the unchanged part of the section as originally enacted continued in force,
notwithstanding the amendments, so that the title of the act of 1913 is sufficient.
5. StatutesTitleClerical MistakesEffect.
The intention of the legislature to amend a specified section of the statute must govern, and a clerical
mistake as to the section amendment must be disregarded.
6. StatutesSpecial Acts Granting DivorceConstitutional Prohibition.
The constitution, prohibiting any special laws granting divorce, renders void any special act granting
divorce, as divorces were granted by parliament and state legislatures prior to the constitutional
provision.
7. StatutesSpecial Law.
The provision in the act of February 20, 1913 (Stats. 1913, c. 10), amending section 22 of the
marriage and divorce act of 1861 (Stats. 1861, c. 33), as amended in 1875 (Stats. 1875, c. 22), by
declaring that when, at the time of the accrual of a cause for divorce, the parties shall not both be bona
fide residents of the state, no court shall grant divorce, unless either party shall have been a bona fide
resident for not less than one year next preceding the commencement of the action, is of general uniform
operation throughout the state, and applies the same in every part of the state, and to all persons under
similar circumstances, and is not a local or special law within Const. art. 4, sec. 20, prohibiting any
local or special law granting a divorce.
8. Constitutional LawDivorceEqual Protection of the
LawsClassificationJurisdictionResidence.
The act of February 20, 1913 (Stats. 1913, c. 10), amending section 22 of the marriage and divorce
act of 1861 (Stats. 1861, c. 33), as amended in 1875 (Stats. 1875, c. 22), by declaring that when, at the
time a cause for divorce accrues, the parties shall not have been bona fide residents, the courts shall not
grant a divorce, unless either party shall have been a bona fide resident for not less than a year, provides
for a classification of nonresidents at the time of the accrual of the cause of action for divorce, and the
classification is reasonable, and does not conflict with the fourteenth amendment to the federal
constitution guaranteeing the equal protection of the laws.
9. StatutesLocal or Special Laws.
Reasonable classifications in a legislative act are not prohibited by the constitution prohibiting the
passage of local or special laws.
10. DivorceJurisdiction of CourtsStatutory Provisions.
The courts have no inherent power to grant a divorce: but such power must be conferred by statute.
11. DivorceCourtsJurisdiction.
The courts of a state have no jurisdiction to grant a divorce, unless at least one of the parties has a
domicile in the state, and the appearance of a nonresident defendant will not invest the court with
jurisdiction of a suit brought by a person who has no bona fide domicile in the state.
12. Constitutional LawDiscrimination Against Nonresidents.
A statute of a state which provides that where, at the time of the accrual of a cause for divorce, the
parties shall not be both bona fide residents, no court shall grant a divorce, unless either party shall have
been a bona fide resident for not less than one year next preceding the bringing of the action, does not
violate Const. U. S. art. 4, sec. 2, guaranteeing to citizens of each state all privileges and immunities of
citizens in the several states; there being a distinction between citizenship and residence and the rights of
citizens and residents, and the constitution guaranteeing no rights to citizens as to Divorce.
13. DivorceStatutesApplicability.
The provisions of the act of February 20, 1913 (Stats. 1913, c. 10), amending section 22 of the
marriage and divorce act of 1861 (Stats. 1861, c. 33), as amended by the act of February 15, 1875 (Stats.
1875, c. 22), by declaring that the court shall not grant a divorce, unless either party shall have been a
resident for not less than one year, relates merely to procedure, and not to the cause of action, and applies
to cases where the cause of action accrued before the act took effect.
14. Constitutional LawImpairing Obligation Of Contracts.
The constitutional prohibition against the impairment of obligation of contracts does not apply to
divorces, which are under the control of the legislature, and the provision of the act of February 20, 1913
(Stats. 1913, c. 10), amending section 22 of the marriage and divorce act of 1861 (Stats. 1861, c. 33), as
amended in 1875 (Stats. 1875, c. 22), by the declaring that when, at the time a cause of divorce accrues,
the parties are not both residents, the court cannot have jurisdiction, unless either party has been a bona
fide resident for not less than one year, does not impair the obligation of contracts, though it be construed
as relating to a cause for divorce.
15. DivorceNature of RightPrivileges of Citizens.
The right to a divorce is not a guaranteed privilege of the citizens, and the right to divorce is limited
to the causes and subject to the requirements prescribed by state statute.
16. Constitutional LawStatutesValidity.
The court, in determining the validity of a statute, will not consider its policy, wisdom, or expediency,
but will enforce it in accordance with the intention of the legislature, unless clearly in conflict with the
constitution.
17. Constitutional LawConstruction of Constitutional Provisions.
The provisions of the constitution, state or federal, do not cover rights, privileges, and obligations not
specified and not existing or understood at the time of its adoption, or not in force by long acquiescence,
or by continued official or public approval.
Original proceeding. Mandamus by Alfred Worthington against the Second Judicial
District Court in and for Washoe County and Judge thereof to compel respondents to issue an
order for the publication of a summons in an action by petitioner for divorce. Denied.
Sweeney & Morehouse, W. D. Jones, and N. J. Barry, for Petitioner.
A. A. Heer, S. Summerfield, R. G. Withers, Prince A. Hawkins, George S. Brown, John S.
Orr, and L. A. Gibbons, for Respondents.
H. D. Danforth, amicus curiae.
Petitioner applies for a writ of mandate commanding the Honorable T. F. Moran, judge of
the Second judicial district court, to issue an order for the publication of summons in the
action of Alfred Worthington, Plaintiff, v. Cecelia Worthington, Defendant, for divorce,
which was brought in that court on the 11th day of February, 1914.
It is alleged that the petitioner filed his verified complaint in that case, stating two causes
of action, in conformity with the laws of this state relating to marriage and divorce; that the
summons and certified copy of complaint could not be served personally upon the defendant
because she resides, and for along time has resided, in the city of Daly, San Mateo County,
State of California, and is not now, and never has been, a resident of the State of Nevada.
Petitioner made and presented to the district judge an affidavit setting forth these facts, and
stating that on the 20th day of July, 1913, he became, and ever since has been, a resident of
Washoe County, State of Nevada; that he needed an order in conformity with the laws of
this state authorizing the publication of the summons and the deposit of a certified copy
of the complaint and summons in the postoffice at Reno, addressed to the defendant at
her place of residence, with the postage thereon prepaid, so that she might be notified of
the action.
and ever since has been, a resident of Washoe County, State of Nevada; that he needed an
order in conformity with the laws of this state authorizing the publication of the summons and
the deposit of a certified copy of the complaint and summons in the postoffice at Reno,
addressed to the defendant at her place of residence, with the postage thereon prepaid, so that
she might be notified of the action.
The district judge refused to make the order for publication and service of summons, upon
the ground that the petitioner had not been a resident of the county of Washoe, State of
Nevada, for the full period of one year before the commencement of the action, and based his
refusal upon section 22 of the act relating to marriage and divorce, as amended at the last
session of the legislature by an act approved February 20, 1913, under the title: An act to
amend an act entitled An act to amend an act entitled An act relating to marriage and
divorce, approved November 28, 1861,' as approved February 15, 1875.
This act provides:
Section 1. Section twenty-two of said act is amended so as to read as follow:
Sec. 22. Divorce from the bonds of matrimony may be obtained, by complaint under oath,
to the district court of the county in which the cause therefor shall have accrued, or in which
the defendant shall reside or be found, or in which the plaintiff shall reside, if the latter be
either the county in which the parties last cohabited, or in which the plaintiff shall have
resided six months before suit be brought, for the following causes: FirstImpotency at the
time of the marriage continuing to the time of the divorce. SecondAdultery since the
marriage, remaining unforgiven. ThirdWilful desertion, at any time, of either party by the
other, for the period of one year. FourthConviction of felony or infamous crime.
FifthHabitual gross drunkenness, contracted since marriage, of either party, which shall
incapacitate such party from contributing his or her share to the support of the family.
such party from contributing his or her share to the support of the family. SixthExtreme
cruelty in either party. SeventhNeglect of the husband, for a period of one year, to provide
the common necessaries of life, when such neglect is not the result of poverty on the part of
the husband which he could not avoid by ordinary industry. Provided, that when at the time
the cause of divorce accrues, the parties shall not both be bona fide residents of the state, no
court shall have jurisdiction to grant a divorce, unless either the plaintiff or the defendant
shall have been a bona fide resident of the state for a period of not less than one year next
preceding the commencement of the action.
Sec. 2. All acts or parts of acts in conflict with this act are hereby repealed.
Sec. 3. This act shall be in effect from and after the first day of January, 1914.
(Stats. 1913, c. 10.)
The only change made by this amendment is the addition of the last sentence quoted in
section 22, which begins with the word Provided. Otherwise the section is the same as the
amendment of 1875, which was the same as section 22 of the act as originally passed by the
first territorial session of the legislature in 1861 (Stats. 1861, c. 33), excepting that the
amendment of 1875 (Stats. 1875, c. 22) shortened from two years to one year the time
required for desertion and failure to provide.
Petitioner makes no objection to the act of 1875, but directs his batteries against the last
amendment. It is said that there was no section 22 to amend in 1913, and that the legislature
cannot inject into the statutes by the last amendment the jurisdiction of the court, not germane
to the title.
Also, it is claimed that this act is in violation of the following provisions of the state
constitution:
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, possessing, and protecting
property and pursuing and obtaining safety and happiness."
and defending life and liberty; acquiring, possessing, and protecting property and pursuing
and obtaining safety and happiness. (Section 1, art. 1.)
Each law enacted by the legislature shall embrace but one subject, and matter properly
connected therewith, which subject shall be briefly expressed in the title; and no law shall be
revised or amended by reference to its title only; but, in such case, the act as revised, or
section as amended, shall be reenacted and published at length. (Section 17, art. 4.)
The legislature shall not pass local or special laws * * * granting divorce. (Section 20,
art. 4.)
In all cases enumerated in the preceding section, and in all other cases, where a general
law can be made applicable, all laws shall be made general and of uniform operation
throughout the state. (Section 21, art. 4.)
It is further contended that the statute is in conflict with section 2, article 4, of the
constitution of the United States, which provides that:
The citizens of each state shall be entitled to all privileges and immunities of citizens in
the several states
and of the fourteenth amendment, which specified that:
No state shall make or enforce any law which shall abridge the privileges or immunities
of citizens of the United States; nor shall any state deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within its jurisdiction the equal
protection of the laws.
[1] The objection that the amendment requiring one year's residence in certain cases to
give the court jurisdiction in an action for divorce is not germane to the title is untenable. To
sustain such a contention would be in effect saying that the provision of the act originally
passed requiring six months' residence under certain circumstances was unconstitutional
because under a similar title, and that divorces granted since the organization of the territory
and state are void, resulting in many cases of bigamy, illegitimacy, and failure of
inheritance.
many cases of bigamy, illegitimacy, and failure of inheritance.
We had occasion to examine similar objections to the sufficiency of titles to legislative
acts in the cases of State v. State Bank and Trust Co., 31 Nev. 456, 103 Pac. 407, 105 Pac.
567, and Ex Parte Ah Pah, 34 Nev. 283, 119 Pac. 770. In the former case we said:
The main principles controlling these questions have been well-nigh settled by this and
other courts. That section 17, article 4, of the constitution, providing that each law enacted
by the legislature shall embrace but one subject and matters properly connected therewith,' is
mandatory must be conceded. In regard to this objection, we need only determine whether
this action and the decree of the district court relate to matters germane to the subject
expressed in the title of the act, or to what is properly connected therewith.
In that case we held that An act creating a board of bank commissioners, defining their
duties, providing for the appointment of a bank examiner, prescribing his duties, fixing his
compensation, providing penalties for the violation of the provisions of this act, and other
matters relating thereto (Stats. 1907, c. 119), although providing by section 10 for an action
by the attorney-general against a banking corporation on the decision by the bank examiner
and commissioners that it is unsafe for it to continue business, and that, if the court shall find
it unsafe, it shall appoint a receiver, does not contravene the above constitutional provision.
[2] The title of the original and the two amendatory acts relate to marriage and divorce.
Divorce, being the dissolution of the marriage relation, necessarily relates to marriage. The
length of residence required before parties apply for a divorce, whether it be six months, or
one year, or a longer or shorter period, necessarily pertains to divorce, and is a matter
connected with the title of the act. The amendment is as free from constitutional objection as
if it had been entitled an act relating to divorce, or an act relating to the jurisdiction of the
district court.
district court. Many acts, such as the ones relating to crimes, punishments, civil practice, and
criminal practice relate to numerous matters. It is sufficient if they relate to the subject briefly
expressed in the title and anything properly connected therewith.
[3] The constitution of the state, adopted in 1864, provided that all territorial laws not
repugnant to its provisions shall remain in force until altered or repealed. (Rev. Laws, sec.
386.) For nearly half a century the marriage and divorce act has been recognized by all the
courts of this state as a valid existing law, and the marital rights of numerous parties have
been settled according to its provisions. Where an act of the legislature has for a long period
of years been enforced by the courts of a state, without its constitutionality being challenged,
that fact may be considered a virtual recognition of its constitutionality. Courts seldom
entertain questions of the constitutionality of an act so long and repeatedly recognized as
valid in the adjudication of the most important relations and rights, and when the
interpretation of the statute would lead to consequences most serious.
In the Tiedemann case, 36 Nev. 494, 500, 137 Pac. 824, this court treated the amendment
of 1875 of section 22 of the marriage and divorce act as a part of the act of 1861, and not as a
separate act, and referred to the act of 1913 as amendatory of section 22 of the original act.
While the question was not specifically presented for consideration in that case, this view of
considering amendatory statutes is well supported by the authorities.
[4] Under the title and language of the act of 1875, before mentioned, considered with the
provision in section 19, article 4, of the constitution, that no law shall be revised or amended
by reference to its title only, but, in such case, the act as revised, or section as amended, shall
be reenacted and published at length, it is apparent that the legislature intended to amend
section 22 of the original act relating to marriage and divorce. It is contended that the act of
1875 repealed section 22 of the original act, and that the act of 1913 is void, because it
attempts to amend that section after it has been repealed.
attempts to amend that section after it has been repealed. The unchanged part of a section
amended is deemed to continue in force. From the title stating so and the language used, it is
apparent that by the act of 1913 the legislature intended to amend the act of 1875. No
language could have more definitely indicated this purpose. The act as revised and section as
amended was reenacted and published at length. Each of the later acts is entitled An act
to amend, and not An Act to repeal. The statement in section 2 of the act of 1913 that all
acts and parts of acts in conflict with this act are hereby repealed is a stereotyped form, often
unnecessarily used in bills. It has no effect, and may be regarded as surplusage. We think the
act of 1875 should be considered as an amendment, as defined by lexicographers and
scholars, and as it was intended, the same as such acts have been considered by legislatures
and compilers of laws in this state, instead of a repeal, as ordinarily understood, of section 22
as originally passed. Sections 2 and 4 of our act relating to marriage and divorce were
amended by an act approved March 5, 1867 (Stats. Sp. Sess. 1867, c. 51, p. 88), and in the
subsequent amendment of these sections by the acts approved February 5, 1891 (Stats. 1891,
c. 5), and March 6, 1899 (Stats. 1899, c. 35), the legislature, similarly as in other second
amendatory acts, treated them as numbered sections of the original act, without reference to
them as sections of the first amendatory act.
[5] As the act of 1913 reenacts at length, in compliance with section 17, article 4, the
language designated as section 22 in the act of 1875, it must have been the intention to
amend that section, and no other. But if it be conceded for the argument that the act of 1875
was a new act which repealed section 22, and that the act of 1913 ought to have specified that
section 1, instead of section 22, was amended, it would still be clearly apparent that there was
only a mistake in this reference to the section, and that the one reenacted at length, and none
other, was intended to be amended. As often held, the intention of the legislature should
govern, and clerical mistakes should be disregarded.
intention of the legislature should govern, and clerical mistakes should be disregarded.
In New York, an act of 1883 (Laws 1883, c. 414) purported to amend section 16 of the act
of 1856 (Laws 1856, c. 179), which, it was claimed, had been repealed by an act of 1864
(Laws 1864, c. 555). The court in People v. Canvassers, 143 N. Y. 84, 37 N. E. 649, held a
different opinion as to the repeal, but concluded that, even if the act of 1856 was repealed as
claimed, the amendatory act of 1883 was nevertheless valid. The court said:
The enactment of this law is put into the form of an amendment of a law, which was
standing upon the statute books, and whether that earlier law, by force of subsequent
legislation, had become inoperative is wholly immaterial. The only question is: Has the
legislature, in the enactment complained of, expressed its purpose intelligently and provided
fully upon the subject? If it has, then its act is valid and must be upheld. That is the case here.
The act of 1883 contains all that is provided for in the particular section of the act of 1856,
and gives full power to the boards of supervisors with respect to the formation of school
commissioners' districts. A law thus explicit and complete may not be disregarded or
invalidated because of a possible mistake of the legislature with respect to the existence of the
statute in amendment of which the act is passed. It is an enactment of a law, in any view.
The Supreme Court of Massachusetts, in Commonwealth v. Kenneson, 143 Mass. 419, 9
N. E. 763, said:
The defendant contends that Stats. 1886, c. 318, sec. 2, is inoperative, because it purports
to be an amendment of the Pub. Stats. c. 57, secs. 5, 9, and he says that said section 9 was
repealed by Stats. 1885, c. 352, sec. 6. The argument is that an amendment of a repealed
statute is a nullity. * * * The intention of the legislature is plain that, after Stats. 1885, c. 352,
took effect, instead of Pub. Stats. c. 57, sec. 9, the sixth section of Stats. 1885, c. 352, should
be in force, and that after Stats. 1886, c.
318, took effect, section 2 of this statute should be in force, instead of section 6 of Stats.
1885, c. 352. The sections in each statute are complete in themselves, and, being substitutes
for each other, stand like independent enactments. The only defect in the statute is that Stats.
1886, c. 318, sec.2, refers to Pub. Stats. c. 57, sec. 9, and not to this section as amended; but
the intention is evident.
In Fletcher v. Prather, 102 Cal. 414, 36 Pac. 658, under a constitutional provision similar
to ours, it was held that the amended section of an act takes the place of the original section
by its appropriate number in the original act, and that portions not altered are to be considered
as having been the law from the time they were enacted, and the new provisions are to be
considered as having been enacted at the time of the amendment.
The slight variance in reciting the title of the act amended will be immaterial if the act
intended is clearly identified.
An act entitled An act to amend section 1733 of chapter 11 of title 11 of the original
code of Oregon' was held good, although there was no such chapter or title; there being but
one section with the number given.
The intent of the legislature was held to be plain, and effect was given to the act, so that,
while the title and act purported to amend section 202 of article 8 of a specified statute, they
were given effect as an amendment of section 1 of article 8.
(Lewis's Sutherland, Statutory Construction, 2d ed. sec. 138; Otis v. People, 196 Ill. 542,
63 N. E. 1053; Northern Pacific Express Co. v. Metschan, 90 Fed. 80, 32 C. C. A. 530.)
Mr. Sutherland also says that where the title of the amendatory act recites the title of the
act amended, and there is only one act with that title, error in referring to the date of the
approval of the act amended will not vitiate the title. (American Surety Co. v. Great White
Spirit Co., 58 N. J. Eq. 526, 43 Atl. 579; Citizens' Street R. R. Co. v. Haugh, 142 Ind. 254, 41
N. E. 533; Alberson v. Mayor, 82 Ga. 30, 8 S. E. 869.)
At sections 231, 135, 137, and 233 of that work, and over the citation of many cases, it is
said:
In the amendment or revision of a statute two things are required: First, the title of the act
amended or revised should be referred to, and, secondly, the act as revised, or section as
amended, should be set forth and published at full length. * * * It is not required that the
amendatory act state that certain words of a specific section are stricken out and others
inserted, and then set out in full the section as amended; it is sufficient if the section as
amended be set out in full. * * * If the references to the act to be amended in the title and
body of the amendatory act is sufficient for identification, it is all that is required, and slight
errors will be disregarded.
By force of our constitutional provision, requiring the object of every law to be expressed
in its title, the title limits the sphere within which the enacting clause can operate.
The constitutional requirement under discussion as applied to the acts of this character
when they contain matter which might appropriately have been incorporated in the original
act under its title is satisfied generally if the amendatory or supplemental act identifies the
original act by its title, and declares the purpose to amend or supplement it. Under such a title,
alterations by excision, addition, or substitution may be made, and any provisions may be
enacted which might have been incorporated in the original act. A title which expresses a
purpose to amend an earlier enactment, referring to the earlier enactment by its title, in which
the subject of the proposed legislation is clearly expressed, is no more or less than the
expression of a purpose to deal with the subject so expressed in the title of the earlier
enactment.
There is a conflict of authority as to whether a section which has been repealed can be
amended. The question usually arises where a section of an act is amended to read as
follows,' and is then again amended in the same manner and by the same description,
ignoring the first amendment.
manner and by the same description, ignoring the first amendment. Most of the older and
some of the more recent cases hold that such an amendatory act, or the amendment of a
repealed section, is a nullity. A repeal by implication is said to stand upon the same footing in
this respect as a direct or express repeal. While there is some conflict of opinion on the
subject,' says the United States Court of Appeals, the decided weight of authority and the
better opinion is that an amendatory statute is not invalid, though it purport to amend a statute
which had previously been amended, or for any reason had been held invalid.' This view, we
believe, is sustained by the decisions.
(Wilkerson v. Ketler, 59 Ala. 306; State v. Warford, 84 Ala. 15, 3 South. 911; Ex Parte
Pierce, 87 Ala. 110, 6 South. 392; Harper v. State, 109 Ala. 28, 19 South. 857; Harper v.
State, 109 Ala. 66, 19 South. 901; O'Rear v. Jackson, 124 Ala. 298, 26 South. 944; Reynolds
v. Board of Education, 66 Kan. 672, 72 Pac. 274; Lewis v. Brandenburg, 105 Ky. 14, 47 S.
W. 862, 48 S. W. 978; Lang v. Calloway, 68 Mo. App. 393; Parlin Orendorf Co. v. Hord, 78
Mo. App. 279; Fenton v. Yule, 27 Neb. 758, 43 N. W. 1140; State v. Babcock, 23 Neb. 128,
36 N. W. 348; Baird v. Todd, 27 Neb. 782, 43 N. W. 1143; State v. Partridge, 29 Neb. 158,
45 N. W. 290; State v. Bemis, 45 Neb. 724, 64 N. W. 348; State v. Kearney, 49 Neb. 325, 68
N. W. 533; State v. Kearney, 49 Neb. 337, 70 N. W. 255; State v. Wahoo, 62 Neb. 40, 86 N.
W. 923; Van Clief v. Van Vechten, 55 Hun, 467, 8 N. Y. Supp. 760; White v. Boody, 74 Hun,
39, 26 N. Y. Supp. 294; People v. Canvassers, 77 Hun, 372, 28 N. Y. Supp. 871; People v.
Upson, 79 Hun, 87, 29 N. Y. Supp. 615; Columbia Wire Co. v. Boyce, 104 Fed. 172, 44 C. C.
A. 588; Heinz v. Butte M. Co., 107 Fed. 165, 46 C. C. A. 219; Minnesota & Mont. L. & I. Co.
v. Billings, 111 Fed. 972, 50 C. C. A. 70.)
[6] The section in our organic act providing that the legislature shall not pass special laws
granting divorces would render void any special act attempting to grant a divorce, as
divorces were granted by parliament and state legislatures prior to the adoption of such
constitutional provisions in this and other states.
a divorce, as divorces were granted by parliament and state legislatures prior to the adoption
of such constitutional provisions in this and other states.
[7] The provisions in the last amendatory statute that when, at the time the cause of
divorce accrues, the parties shall not both be bona fide residents of the state, no court shall
have jurisdiction, unless one of the parties shall have been a bona fide resident of the state for
a period of not less than one year next preceding the commencement of the action, is of
general and uniform operation throughout the state, and not in conflict with the requirements
that all such laws must be of uniform and general operation. It applies the same in every part
of the state, and the same to all persons under similar circumstances.
As seen, our law in its present form, except that six months' instead of one year's residence
and two instead of one year's desertion or failure to provide are required, was passed at the
first session of the territorial legislature for the people here before there was any railroad in
this state or modern means of transportation, when the laws of some other states did not
require as long a residence, and when there was no anticipation that people would come to
this state for the purpose of obtaining divorces. Long after the enactment of our law requiring
six months' residence Indiana allowed divorce actions to be instituted in the county in which
the plaintiff was a bona fide resident, without requiring any specified period.
[8] Under the amendment of 1913 there is a distinction or classification regarding a longer
residence when both of the parties are not bona fide residents of the state. Ever since the
passage of the act relating to marriage and divorce a the first session of the territorial
legislature there have been the same classifications relating to residence which appear in the
forepart of section 22, and these never have been and are not now questioned. In addition to
the classifications regarding residence and venue which have always existed in that act, it is
provided that females not under 18 may marry without parental consent, while males are
not allowed to marry without obtaining consent until after they are 21 years of age, and
failure of the husband to provide for the wife is made a ground for divorce, while no such
cause is specified in favor of the husband.
parental consent, while males are not allowed to marry without obtaining consent until after
they are 21 years of age, and failure of the husband to provide for the wife is made a ground
for divorce, while no such cause is specified in favor of the husband.
It could be contended with as much force that the six months' requirement in the original
act is void as that the classification requiring one year under certain circumstances is
unconstitutional. Classifications similar in principle are common in other states. Under
certain circumstances one year's residence is required before filing suit for divorce in
Arizona, Arkansas, California, Colorado, Georgia, Illinois, Iowa, Kansas, Kentucky, Maine,
Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New
Mexico, New York, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, South Dakota,
unless personal service is made, Texas, Utah, Virginia, Washington, West Virginia,
Wisconsin, Wyoming, and Nevada33 statesand Porto Rico. Two years is required in
Florida, Indiana, Maryland, New Jersey, North Carolina, Rhode Island, Tennessee, and
Vermont8 statesand in Hawaii. Three years' residence is required in Alabama,
Connecticut, and the District of Columbia. In Massachusetts a residence of five years is
required, unless the parties were inhabitants at the time of marriage, and libelant has lived in
the state three years. A residence of six months is required in Idaho. Louisiana has a provision
in relation to marriages having been solemnized in the state. In Delaware bona fide residence
is required, and divorces are not granted if the cause accrued in another state, and petitioner
was a nonresident at the time, unless for limited causes recognized by the laws of the state.
The constitution of South Carolina of 1868 provides that: Divorces from the bonds of
matrimony shall not be allowed but by the judgment of a court, as shall be prescribed by
law. (Article 14, sec. 5.)
In 1895 the constitution of that state was amended so as to provide that: Divorces from
the bonds of matrimony shall not be allowed in this state."
mony shall not be allowed in this state. (Article 17, sec. 3.)
In Texas formerly only six months' residence was required; but an amendment approved
April 1, 1913, provides that no suit for divorce shall be maintained in the courts of that state,
unless the petitioner shall: Be an actual, bona fide inhabitant of the state for a period of
twelve months, and shall reside in the county where the suit is filed six months; provided, that
such suit shall not be heard or divorce granted before the expiration of thirty days after the
same is filed; * * * provided further, that in addition to the grounds for divorce now provided
by statute, that where any husband and wife have lived without cohabitation for as long as ten
years, the same shall be sufficient grounds for divorce.
In South Carolina, where divorce is not allowed for any cause, and in New York, where it
may be obtained only for adultery, if the husband is about to kill his wife, and does kill
another person who intercedes to defend her, and is sent to prison for life, she can obtain no
relief from the bonds of matrimony.
A few of the states have passed eugenic laws prohibiting the marriage of persons afflicted
with certain incurable, contagious, or transmissible diseases.
Similarly to ours, many of the states have classifications based on alternative conditions
which in certain instances make the one year's residence unnecessary. For instance, a
residence of one year is required in Colorado, unless the act was committed in the state, or
one of the parties resided in the state at the time; three years in Connecticut, unless the cause
arose after removal to the state; in Illinois one year, unless the offense was committed in the
state; in Kentucky one year, unless the act was committed while the plaintiff was a resident of
the state; in Maine one year, unless the plaintiff resided in the state when the cause accrued,
or the parties were married in the state; in Michigan there must be a residency of two years, if
the cause arose out of the state; in Minnesota one year, except where adultery was committed
in the state; in Mississippi one year unless both parties are domiciled in the state, or
service has been made on the defendant in the state; in Missouri one year, unless the act
was committed in the state, or while one of the parties resided in the state; and in Porto
Rico one year, unless the act was committed while one of the parties resided there; in
Nebraska two years' residence is required if the cause arose out of the state.
state; in Mississippi one year unless both parties are domiciled in the state, or service has
been made on the defendant in the state; in Missouri one year, unless the act was committed
in the state, or while one of the parties resided in the state; and in Porto Rico one year, unless
the act was committed while one of the parties resided there; in Nebraska two years' residence
is required if the cause arose out of the state.
In most of the states causes for divorce are substantially the same as in Nevada. The draft
of an act to make uniform the law regulating divorce and the annulment of marriage, prepared
by the committee of the American Bar Association, and recommended to the commissioners
on uniform state laws, designates causes for the dissolution of marriage substantially the same
as the ones contained in our statute, excepting that our clause relating to the neglect of the
husband to provide for the wife is omitted, and two years' desertion, instead of one, and
habitual drunkenness for two years, instead of drunkenness which incapacitates from
contributing the proper share to the support of the family, are required. In the proposed
uniform act it is provided that two years' residence is necessary in order to give jurisdiction,
except when the cause is adultery or bigamy, or there are certain other classified
circumstances. That the various states may make such classifications and require this or any
desired length of residence does not appear to have been questioned by the eminent lawyers
and jurists constituting the committee preparing and recommending the act and composing
the American Bar Association.
[9] In the enactment and administration of the laws many classifications necessarily exist.
The defendant in a civil action must answer in ten days if served in the county, within twenty
days if served out of the county and in the district, and within forty days if served out of the
district. The statutes provide that nonresident defendants are required to give security for
costs. Classifications in regard to cities, counties, officials, public service, mining, and other
corporations, business and professional vocations, and in many other ways have been made
and sustained when reasonable.
vocations, and in many other ways have been made and sustained when reasonable. The
residential classification made by the amendment of 1913, being similar to the classifications
made in various states, which have been enforced without exception, and to the ones made in
our own statute relating to marriage and divorce, and acted upon and accepted without
question for fifty years, we are unable to say that it is unreasonable or unconstitutional. It is
well settled that reasonable classifications in a legislative act are not inimical to constitutional
provisions against the passage of special laws. (Singleton v. Eureka County, 22 Nev. 97, 35
Pac. 833; Ex Parte Spinney, 10 Nev. 323; Russell v. Esmeralda Co., 32 Nev. 304, 107 Pac.
890; Central Loan & Trust Co. v. Campbell, 173 U. S. 84, 19 Sup. Ct. 346, 43 L. Ed. 623;
Harwood v. Wentworth, 162 U. S. 547, 16 Sup. Ct. 890, 40 L. Ed. 1069; Waite v. Santa Cruz,
184 U. S. 302, 22 Sup. Ct. 327, 46 L. Ed. 552; 36 Cyc. 992; Atchison, etc. R. R. v. Matthews,
174 U. S. 96, 19 Sup. Ct. 609, 43 L. Ed. 909; Deyoe v. Superior Court, 140 Cal. 476, 74 Pac.
28, 98 Am. St. Rep. 73.)
[10] In determining constitutional questions presented, the law of divorce as it existed at
and prior to the time of the adoption of the constitution should be considered. There has been
divorce in some form since the dawn of history. Under the Mosaic law the husband could
write the wife a bill of divorcement and send her away, and she could go and become another
man's wife. (Deuteronomy, c. 24.) About the beginning of the Christian era there arose two
famed schools of the law at Jerusalem. One, under Shammai, taught that divorce was
unlawful except for adultery; the more popular one, under Hillel, authorized divorce for any
cause. With the early Romans divorce was at the will of the husband, and later upon the
agreement of the parties. In more modern times, in all civilized countries, divorce has been
subject to the limitations or consent of the state or church in control. In England at the time of
the secession of the colonies, and for a long time previously, divorce from bed and board had
been allowed by ecclesiastical courts, and absolute divorces to a favored few by special acts
of parliament.
divorces to a favored few by special acts of parliament. Otherwise divorces were not granted
under the common law, and there was no general act of parliament authorizing them, and no
jurisdiction in the chancery or common-law courts to grant divorces until eighty-one years
after the declaration of independence.
As there were no ecclesiastical courts in this country, divorces were granted by special act
of the legislature, and later in most states under general statutory provisions. As Congress has
only such powers as are specifically granted or implied under the provisions of the
constitution of the United States, and as these do not embrace divorce, and all legislative
powers not granted to Congress are reserved to the legislatures of the various states, except as
inhibited by some provision of the state constitution, and as there is no inherent or inherited
power in the courts of this country to grant divorces, it follows that our tribunals have no
jurisdiction or authority in regard to divorces, except such as may be conferred upon them by
the legislature, which has power to pass general and special laws, except as prohibited by
some constitutional provisions. The law favors marriage as the most important of the
domestic relations, but allows its dissolution only under such restrictions as the legislature
may deem best for the public welfare.
[11] The authorities hold that the courts of the state have no jurisdiction to grant a divorce,
unless at least one of the parties has a domicile in the state. (People v. Dawell, 25 Mich. 247,
12 Am. St. Rep. 260, opinion by Judge Cooley; Maguire v. Maguire, 7 Dana, Ky. 181; Hare
v. Hare, 10 Tex. 355; Strait v. Strait, 10 D. C. 415; Greenlaw v. Greenlaw, 12 N. H. 200;
House v. House, 25 Ga. 473; Sewall v. Sewall, 122 Mass. 156, 23 Am. Rep. 299; Hoffman v.
Hoffman, 46 N. Y. 30, 7 Am. Rep. 299; State v. Armington, 25 Minn. 29; Reel v. Elder, 62
Pa. 308, 1 Am. Rep. 414.)
In Hood v. State, 56 Ind. 263, 26 Am. Rep. 21, it was held that a decree of divorce
rendered in a state where neither of the parties lived at the time of rendition is void for want
of jurisdiction.
void for want of jurisdiction. Referring to this case, the Supreme Court of Kansas, in Litowich
v. Litowich, 19 Kan. 451, 27 Am. Rep. 148, said:
And this decision of the Supreme Court of Indiana is in accordance with the unbroken
current of authority. (2 Bishop's Marriage & Divorce, sec. 144.) And where the judgment
granting the divorce does not appear to be void upon its face, it may be shown to be void by
evidence aliunde. (Hoffman v. Hoffman, 46 N. Y. 30, 33, 7 Am. Rep. 299; Kerr v. Kerr, 41
N. Y. 272; Borden v. Fitch, 15 Johns, N. Y. 121, 141, 8 Am. Dec. 225; Leith v. Leith, 39 N.
H. 20; Pollard v. Wegener, 13 Wis. 569, 576.) And indeed any judgment from a sister state,
void for want of jurisdiction, may be shown to be void in any proceeding, direct or collateral,
and by evidence dehors the record, provided that the record itself does not show the invalidity
of the judgment upon its face. (Thompson v. Whitman, 18 Wall. 457, 21 L. Ed. 897; Knowles
v. Gaslight Co., 19 Wall, 58, 22 L. Ed. 70; Rape v. Heaton, 9 Wis. 328, 76 Am. Dec. 269;
Ward v. Price, 25 N. J. Law, 225; Aldrich v. Kinney, 4 Conn. 380, 10 Am. Dec. 151;
Starbuck v. Murray, 5 Wend. N. Y. 148, 156, 21 Am. Dec. 172; Shumway v. Stillman, 6
Wend. N. Y. 447, 452; Hall v. Williams, 6 Pick. Mass. 232, 237, 17 Am. Dec. 356; Carleton
v. Bickford, 13 Gray, Mass. 591, 74 Am. Dec. 652; Pollard v. Baldwin, 22 Iowa, 328;
Norwood v. Cobb, 15 Tex. 500, 24 Tex. 551.)
In Howell v. Howell, 87 Kan. 389, 124 Pac. 168, Ann. Cas. 1913e, 429, the court said:
Under these sections a party asking a divorce must, in any event, have been an actual
resident, in good faith, of the state one year preceding the filing of his petition. The Howells,
it seems, had not resided in Kansas the required time, and hence the court had no jurisdiction
of the divorce proceeding.
In Nicholas v. Maddox, 52 La. Ann. 1493, 27 South. 966, cases are cited supporting the
statement of the court that it has always been held in Louisiana that a husband or wife who
acquires a domicile in that state cannot maintain an action there against the absent spouse,
who never acquired a domicile in that state.
cannot maintain an action there against the absent spouse, who never acquired a domicile in
that state.
In McConnell v. McConnell, 167 Mo. App. 680, 151 S. W. 175, it was held that under an
act providing that an action for divorce should be had in the county where the plaintiff
resides, and declaring that no person shall be entitled to a divorce who has not resided in the
state for a year next before the filing of the petition, unless the offense complained of is
committed within the state, the court had no jurisdiction of a suit for divorce by a nonresident
husband for an act committed by the wife in the state while residing there.
In Bechtel v. Bechtel, 101 Minn. 511, 112 N. W. 883, 12 L. R. A. n. s. 1100, it was held
that actual residence is necessary to give jurisdiction; and the note reviews numerous cases so
holding.
In Rumping v. Rumping, 36 Mont. 39, 91 Pac. 1057, 12 L. R. A. n. s. 1197, 12 Ann. Cas.
1090, it was held that residence must be shown to give the court jurisdiction.
In Andrews v. Andrews, 188 U. S. 14, 23 Sup. Ct. 237, 47 L. Ed. 366, it was held that the
state has exclusive jurisdiction over its citizens concerning the marriage tie and its
dissolution, that the appearance of a nonresident defendant does not invest the court with
jurisdiction of a suit for divorce instituted by a person who has no bona fide domicile within
the state, and that the state may forbid the enforcement within its borders of a decree of
divorce procured by its own citizens in another state while retaining their domicile in the
prohibiting state. (Haddock v. Haddock, 201 U. S. 562, 26 Sup. Ct. 525, 50 L. Ed. 867, 5
Ann. Cas. 1; Bell v. Bell, 181 U. S. 175, 21 Sup. Ct. 551, and note under this case in 45 L. Ed.
804.)
In Barber v. Barber, 21 How. (62 U. S. ) 582, 16 L. Ed. 226, the United States Supreme
Court disclaimed any jurisdiction in the courts of the United States upon the subject of
divorce, but held that the parties to a decree of divorce are bound by the state court having
jurisdiction over the parties.
In 14 Cyc. 584, over the citation of authorities, it is said: The courts of the state have no
jurisdiction to decree a divorce between parties who do not reside therein.
In Pugh v. Pugh, 25 S. D. 7, 124 N. W. 959, 32 L. R. A. n. s. 954, it was held that an act
requiring the plaintiff in a divorce case to have been an actual resident of the state for one
year and the county within which the action was commenced for three months next preceding
the commencement of the action is within the powers reserved by the state, and not in conflict
with any provision of the constitution of the United States or of the state. The law was held
not in conflict with the provision in the constitution of the State of South Dakota that: No
law shall be passed granting to any citizen, class of citizens, or corporation, privileges or
immunities which upon the same terms shall not equally apply to all citizens or corporations.
In Tiffany's Persons and Domestic Relations (2d ed.), sec. 98, it is said: Our courts have
jurisdiction to entertain and grant suits for divorce only where such jurisdiction has been
expressly conferred upon them by statute. It is a general rule that the jurisdiction of
proceedings for a divorce depends on the domicile of the parties, irrespective of the place of
marriage, and without reference to the place where the offense for which the divorce is sought
was committed. To give the court jurisdiction, at least one of the parties must be domiciled in
the state or territory where the action is brought, and, if neither party is domiciled in the state,
the court has in fact no jurisdiction.
In an article on control of marriage and divorce in a law publication for June, 1914, it is
said: Jurisdiction and power to dissolve the marriage relation by divorce is purely statutory,
throughout all portions of the United States, and the statutory power to enact statutes
specifying causes or ground, procedure, and length of domicile required to confer jurisdiction,
rests with the legislative bodies of each state.
Among the cases cited by the respondent, holding that divorce is statutory, are: Franklin v.
Franklin, 40 Mont. 348, 106 Pac. 353, 26 L. R. A. n. s. 490, 20 Ann. Cas. 339; Irwin v. Irwin,
3 Okl. 186, 41 Pac. 369; Dennis v. Dennis, 68 Conn. 186, 36 Atl. 34, 34 L. R. A. 449, 57 Am.
St. Rep. 95; Dutcher v. Dutcher, 39 Wis. 651; Baugh v. Baugh, 37 Mich. 59, 26 Am. Rep.
495; Cizek v. Cizek, 69 Neb. 797, 96 N. W. 657, 99 N. W. 28, 5 Ann. Cas. 464; Noel v.
Ewing, 9 Ind. 37; Williams v. Williams, 136 Ky. 71, 123 S. W. 337; Deyoe v. Superior Court,
140 Cal. 476, 74 Pac. 28, 98 Am. St. Rep. 73; State, ex rel. Hagert, v. Templeton, 18 N. D.
525, 123 N. W. 283, 25 L. R. A. n. s. 234; Ackerman v. Ackerman, 200 N. Y. 72, 93 N. E.
192; Martin v. Martin, 173 Ala. 106, 55 South. 632; Jones v. Jones, 2 Overt. (Tenn.) 2, 5
Am. Dec. 645; Carson v. Carson, 40 Miss. 349; 1 Pomeroy, Eq. sec. 96; sec. 112, subd. 10;
Maslen v. Anderson, 163 Mich. 477, 128 N. W. 723-725.
The case of Maynard v. Hill, 125 U. S. 190, 8 Sup. Ct. 723, 31 L. Ed. 654, on appeal from
a judgment of the Supreme Court of the Territory of Washington, determined in 1888 by the
Supreme Court of the United States, which is the final arbiter of questions relating to the
federal constitution, is conclusive against the contention that a special legislative divorce act
infringes rights guaranteed by that instrument. The question involved was the validity of an
act of the territorial legislature which simply provided: That the bonds of matrimony
heretofore existing between D. S. Maynard and Lydia A. Maynard be, and the same are
hereby, dissolved.
It was alleged in the complaint that no cause existed for the divorce; that no notice was
given to the wife of any application by the husband for a divorce or pendency of the bill in the
legislature; that she had no knowledge of the passage of the act until July, 1853; that at the
time she was not within, and that she never became a resident of, the territory, and never
acquiesced in or consented to the act; that the legislative assembly was without authority to
pass the act; and that the same was void, and did not divorce the parties. Although such a
special act granting a divorce would be void under the provision of our constitution, the
decision reached indicates that our statute does not conflict with any provision of the
federal constitution, and would not even if it were a special instead of a classified divorce
act and that the claim that it is void because special or infringing the rights guaranteed to
the citizen is untenable.
special act granting a divorce would be void under the provision of our constitution, the
decision reached indicates that our statute does not conflict with any provision of the federal
constitution, and would not even if it were a special instead of a classified divorce act and
that the claim that it is void because special or infringing the rights guaranteed to the citizen
is untenable. Speaking for the Supreme Court of the United States in that case, Justice Field,
said:
Marriage, as creating the most important relation in life, as having more to do with the
morals and civilization of a people than any other institution, has always been subject to the
control of the legislature. That body prescribes the age at which parties may contract to marry,
the procedure or form essential to constitute marriage, the duties and obligations it creates, its
effects upon the property rights of both, present and prospective, and the acts which may
constitute grounds for its dissolution.
* * * Says Bishop, in his Treatise on Marriage and Divorce: The fact that at the time of
the settlement of this country legislative divorces were common, competent, and valid in
England, whence our jurisprudence was derived, makes them conclusively so here, except
where an invalidity is directly or indirectly created by a written constitution binding the
legislative power.' (Section 664.) Says Cooley, in his Treatise on Constitutional Limitations:
The granting of divorces from the bonds of matrimony was not confided to the courts in
England, and from the earliest days the colonial and state legislatures in this country have
assumed to possess the same power over the subject which was possessed by the parliament,
and from time to time they have passed special laws declaring a dissolution of the bonds of
matrimony in special cases.' (Page 110.) Says Kent, in his Commentaries: During the period
of our colonial government, for more than one hundred years preceding the Revolution, no
divorce took place in the colony of New York, and for many years after New York became an
independent state there was not any lawful mode of dissolving a marriage in the lifetime of
the parties but by a special act of the legislature.' {Volume 2, 97.)
mode of dissolving a marriage in the lifetime of the parties but by a special act of the
legislature.' (Volume 2, 97.) The same fact is stated in numerous decisions of the highest
courts of the states. Thus in Cronise v. Cronise, 54 Pa. 260, the Supreme Court of
Pennsylvania said: Special divorce laws are legislative acts. This power has been exercised
from the earliest period by the legislature of the province, and by that of the state, under the
constitutions of 1776 and 1790. The continued exercise of the power, after the adoption of the
constitution of 1790, cannot be accounted for, except on the ground that all men, learned and
unlearned, believed it to be a legitimate exercise of legislative power. This belief is further
strengthened by the fact that no judicial decision has been made against it. Communis error
facit jus would be sufficient to support it; but it stands upon the higher ground of
contemporaneous and continued construction of the people of their own instrument.'
In Crane v. Meginnis, 1 Gill & J. (Md.) 474, 19 Am. Dec. 237, the Supreme Court of
Maryland said: Divorces in this state from the earliest times have emanated from the general
assembly, and can now be viewed in no other light than as regular exertions of the legislative
power.'
In Starr v. Pease, 8 Conn. 451, decided in 1831, the question arose before the Supreme
Court of Connecticut as to the validity of a legislative divorce under the constitution of 1818,
which provided for an entire separation of the legislative and judicial departments. The court,
after stating that there had been a law in force in that state on the subject of divorces, passed
one hundred and thirty years before, which provided for divorces on four grounds, said,
speaking by Mr. Justice Daggett: The law has remained in substance the same as it was when
enacted in 1667. During all this period the legislature has interfered like the parliament of
Great Britain, and passed special acts of divorce a vinculo matrimonii; and at almost every
session since the constitution of the United States went into operation, now forty-two years,
and for thirteen years of the existence of the constitution of Connecticut, such acts have
been, in multiplied cases, passed and sanctioned by the constituted authorities of our
state.
and for thirteen years of the existence of the constitution of Connecticut, such acts have been,
in multiplied cases, passed and sanctioned by the constituted authorities of our state. We are
not at liberty to inquire into the wisdom of our existing law on this subject, nor into the
expediency of such frequent interference by the legislature. We can only inquire into the
constitutionality of the act under consideration. The power is not prohibited either by the
constitution of the United States or by that of the state.' * * *
The same doctrine is declared in numerous other cases, and positions similar to those
taken against the validity of the act of the legislative assembly of the territory, that it was
beyond the competency of a legislature to dissolve the bonds of matrimony, have been held
untenable. These decisions justify the conclusion that the division of the government into
three departments and the implied inhibition through that cause upon the legislative
department to exercise judicial functions was neither intended nor understood to exclude
legislative control over the marriage relation. In most of the states the same legislative
practice on the subject has prevailed since the adoption of their constitutions as before,
which, as Mr. Bishop observes, may be regarded as a contemporaneous construction that the
power thus exercised for many years was rightly exercised. * * * We are therefore justified in
holdingmore, we are compelled to holdthat the granting of divorces was a rightful
subject of legislation according to the prevailing judicial opinion of the country, and the
understanding of the profession, at the time the organic act of Oregon was passed by
Congress, when either of the parties divorced was at the time a resident within the territorial
jurisdiction of the legislature.
* * * As was said by Chief Justice Marshall in the Dartmouth College case, 17 U. S. (4
Wheat.) 519, 4 L. Ed. 629, not by way of judgment,but in answer to objections urged to
positions taken: The provision of the constitution never has been understood to embrace
other contracts than those which respect property or some object of value, and confer
rights which may be asserted in a court of justice.
contracts than those which respect property or some object of value, and confer rights which
may be asserted in a court of justice. It never has been understood to restrict the general right
of the legislature to legislate on the subject of divorces.'
* * * When the contract to marry is executed by the marriage, a relation between the
parties is created which they cannot change. Other contracts may be modified, restricted, or
enlarged, or entirely released upon the consent of the parties. Not so with marriage. The
relation once formed, the law steps in and holds the parties to various obligations and
liabilities. It is an institution, in the maintenance of which in its purity the public is deeply
interested, for it is the foundation of the family, and of society, without which there would be
neither civilization nor progress. This view is well expressed by the Supreme Court of Maine
in Adams v. Palmer, 51 Me. 481, 483. Said that court, speaking by Chief Justice Appleton:
When the contracting parties have entered into the married state, they have not so much
entered into a contract as into a new relation, the rights, duties, and obligations of which rest
not upon their agreement, but upon the general law of the state, statutory or common, which
defines and prescribes those rights, duties, and obligations. They are of law, not of contract. It
was of contract that the relation should be established; but, being established, the power of
the parties as to its extent or duration is at an end. Their rights under it are determined by the
will of the sovereign as evidenced by law. They can neither be modified nor changed by any
agreement of parties. It is a relation for life, and the parties cannot terminate it at any shorter
period by virtue of any contract they may make. The reciprocal rights arising from this
relation, so long as it continues, are much as the law determines from time to time, and none
other.' And again: It is not, then, a contract within the meaning of the clause of the
constitution which prohibits the impairing the obligation of contracts. It is, rather, a social
relation, like that of parent and child, the obligations of which arise, not from the consent
of concurring minds, but are the creation of the law itself; a relation the most important,
as affecting the happiness of individuals, the first step from barbarism to incipient
civilization, the purest tie of social life, and the true basis of human progress.' * * * And
the chief justice cites, in support of this view, the case of Maguire v. Maguire, 7 Dana
{Ky.) 1S1, 1S3, and Ditson v. Ditson, 4 R. I. 101.
the obligations of which arise, not from the consent of concurring minds, but are the creation
of the law itself; a relation the most important, as affecting the happiness of individuals, the
first step from barbarism to incipient civilization, the purest tie of social life, and the true
basis of human progress.' * * * And the chief justice cites, in support of this view, the case of
Maguire v. Maguire, 7 Dana (Ky.) 181, 183, and Ditson v. Ditson, 4 R. I. 101. In the first of
these the Supreme Court of Kentucky said that marriage was more than a contract; that it was
the most elementary and useful of all the social relations, was regulated and controlled by the
sovereign power of the state, and could not, like mere contracts, be dissolved by the mutual
consent of the contracting parties, but might be abrogated by the sovereign will whenever the
public good or justice to both parties, or either of the parties, would thereby by subserved;
that being more than a contract, and depending especially upon the sovereign will, it was not
embraced by the constitutional inhibition of legislative acts impairing the obligation of
contracts.
[12] If, as petitioner contends, under the provisions of the United States constitution and
the fourteenth amendment guaranteeing to the citizens of the various states equal protection
of the laws, our statutes cannot discriminate against nonresidents desiring divorce, and our
legislature cannot require persons coming to this state and seeking divorce to reside here one
year, they cannot be required to reside here six months, nor for any length of time, but would
be entitled to maintain an action for divorce for the causes specified under our laws, without
taking up their residence here.
If, contrary to the doctrine universally recognized in other states and in foreign civilized
countries, citizens of other states, without obtaining a domicile here, were entitled to apply
for divorce in our courts under the provisions of the federal constitution granting citizens of
other states equal protection of the laws, the same condition would exist in all the other states,
for the federal constitution applies equally to all, and every citizen of the United States
would be free to go into any adjoining or other state where a divorce might be most easily
obtained and start an action, without having any residence or domicile in that state.
constitution applies equally to all, and every citizen of the United States would be free to go
into any adjoining or other state where a divorce might be most easily obtained and start an
action, without having any residence or domicile in that state. If residence may be required,
necessarily the legislature must have the power to determine the period.
There is a distinction between citizenship and residence, and the rights of citizens and
residents are often different. Citizens of the United States are native-born and foreigners who
have been naturalized according to the laws of the United States after five years' residence.
Even the rights of citizens are not always the same. Under the constitution, male persons over
21 years of age, who are citizens of the United States, and who have resided in this state six
months, are entitled to vote and hold office, and females who have resided in the state one
year are eligible to the offices of superintendent of schools and school trustee. In this and
many other states females, although citizens and residents for the period required for males,
are not allowed to vote, and in other states foreigners who were residents have been allowed
the elective franchise. The qualifications prescribed by the state and federal constitutions
relating to citizens and electors have no reference to divorce, a status pertaining to the internal
affairs of the state and under the control of the lawmaking power, except as restricted or
provided by the constitution. Under the rights assured to the citizen by the constitution, none
in relation to divorce is guaranteed or specified.
No rights by implication follow from that document, except such as existed or were
understood when it was adopted. For illustration, the constitution provides that the right of
trial by jury shall be secured to all, and remain inviolate forever. This insures only the right
of trial by jury in ordinary civil and criminal actions as it existed at the time the constitution
was adopted, but does not guarantee the right of trial by jury in an equity case (Barton v.
Barbour, 104 U. S. 126, 26 L. Ed.
672), or in a proceeding for the collection of taxes, because there was no right to a jury in
such cases at the time the constitution was adopted (Kentucky Tax R. Cases, 115 U. S. 321, 6
Sup. Ct. 57, 29 L. Ed. 414; Bells Cap R. Co. v. Pennsylvania, 134 U. S. 239, 10 Sup. Ct. 533,
33 L. Ed. 892).
[13] In the brief filed by counsel acting as a friend of the court, it is said that the
amendment of 1913, which went into effect on the 1st of January, 1914, is prospective
legislation, and not retrospective, and consequently that, as the complaint filed in the district
court alleges that the cause of action accrued prior to the time when the act went into effect,
the case does not come within the amendment, but is controlled by the statute previously in
force, which required a residence of only six months.
As the amendment does not relate to the cause for divorce, but to the residence required
before institution of suit, it may be considered as a matter of practice. Statutes extending or
shortening the periods within which actions may be brought have often been held to apply to
contracts existing or executed prior to the passage of the statute, and not to be
unconstitutional when they shorten the time if they allow a reasonable period for the
commencement of suit.
[14] If the amendment could be considered as relating to the cause for divorce, it would
not be inimical to the constitutional provision prohibiting laws impairing the obligation of
contracts, for, as we have seen, constitutional provisions of this nature do not apply to
divorces, which are under the control of the legislature. (Maynard v. Hill, 125 U. S. 190, 8
Sup. Ct. 723, 31 L. Ed. 654; People v. Dawell, 25 Mich. 247, 12 Am. Rep. 260.)
Many religious people regard marriage as a sacrament. Our statute provides: That
marriage, so far as its validity in law is concerned, is a civil contract, to which the consent of
the parties capable in law of contracting, is essential. (Rev. Laws, sec. 2338.)
In his work on Marriage and Divorce (6th ed.), Mr. Bishop says: An executed marriage
contract, which is that whereon any divorce operates, is not a contract. It is a status.
a status. Consequently the provision of the constitution now in contemplation has no relation
whatever to divorce, whether legislative or judicial. (Section 667.)
Marriage, being much more than a contract, and depending essentially on the sovereign
will, is, not, as we presume, embraced by the constitutional interdiction of legislative acts
impairing the obligation of contracts. The obligation is created by the public law, subject to
the public will, and not to that of the parties. That it is not within this constitutional provision
may be deemed now to be settled doctrine. (Section 8.)
In his work on Marriage, Divorce, and Separation, he states:
Competent parties have always the law's approbation in marrying; but for divorce it
requires a cause which itself has approved. If, therefore, a statute authorizes divorce for a
dereliction specified, it should in reason be applied equally to past as to future transactions;
and so the courts will apply it, if nothing appears in the terms to forbid. For the same reason it
is applicable to past marriages the same as to future ones; consequently, also, it is not an
infringement of constitutional guaranties. In other words, the status of marriage, though it
deeply affects the individual parties, is treated by the law as a public interest, to be molded,
modified, or destroyed by the public demand. (Section 1492.)
In Conner v. Elliot, 18 How. 591, 15 L. Ed. 497, the Supreme Court of the United States
held that no privileges are secured to citizens in the several states by section 2, art. 4, of the
federal constitution, except those which belong to citizenship, and that marital rights attached
to the contract of marriage are not included in such privileges.
[15-16] As divorce is not among the inalienable rights of man or the ones granted by
Magna Charta, the federal or state constitution, or the common law, and, except at the will
and subject to any restrictions imposed by the legislature, has never been recognized as one of
the guaranteed privileges of the citizen, and as marriage is the most important of the domestic
relations, and of highest concern to the state, it follows that the right to have the bonds of
matrimony dissolved is limited to the causes and subject to the requirement prescribed by
the statute, and that the amendment, advisedly passed by the legislature, and
recommended and approved by the governor, requiring a bona fide residence of one year,
the period required in most of the states to give the court jurisdiction in an action for
divorce, controls, instead of the earlier statute, designating six months, which served our
people for half a century.
highest concern to the state, it follows that the right to have the bonds of matrimony
dissolved is limited to the causes and subject to the requirement prescribed by the statute, and
that the amendment, advisedly passed by the legislature, and recommended and approved by
the governor, requiring a bona fide residence of one year, the period required in most of the
states to give the court jurisdiction in an action for divorce, controls, instead of the earlier
statute, designating six months, which served our people for half a century. Questions relating
to the policy, wisdom, and expediency of the law are for the people's representatives in the
legislature assembled, and not for the courts to determine. It is the duty of the courts to
interpret and enforce the statute in accordance with the intention of the lawmaking body,
unless it is clearly in conflict with some provision of the organic law. (Ex Parte Boyce, 27
Nev. 299, 75 Pac. 1, 65 L. R. A. 47, 1 Ann. Cas. 66; Gibson v. Mason, 5 Nev. 283.)
[17] Although the common law is progressive, and within its proper limitations, by judicial
decision, advances to meet the new conditions which arise in the affairs of men, and new
statutes are enacted as necessity may appear, the provisions of the constitution are adamant
until changed by the people, and do not cover rights, privileges, and obligations not specified
and not existing or understood at the time of its adoption, or not in force by long
acquiescence, or by continued official or public approval.
As the parties were not residents of the state at the time the cause for divorce accrued, and
neither was a bona fide resident of the state for one full year next preceding the
commencement of the action, as required by the statute, the court was without jurisdiction,
and the learned district judge properly refused to make an order for publication of summons.
The application for the writ is denied.
Per Curiam:
Rehearing denied.
____________
37 Nev. 245, 245 (1914)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA
JULY TERM, 1914
____________
[No. 2131]
STATE OF NEVADA, Ex Rel. GEORGE A. BARTLETT, Petitioner, v. GEORGE
BRODIGAN, as Secretary of State, Respondent.
[141 Pac. 988]
1. StatutesEvidenceEnrolled Bill.
The court will not look beyond the enrolled bill in the office of the secretary of state to ascertain the
terms of a law.
2. Constitutional LawJudicial DepartmentEncroachment on Legislative.
While the courts may give effect to statutes by a fair and liberal construction of the language used, they
cannot supply language to make them operative for a presumed purpose, unless from the reading of the
entire act the intent is manifest.
3. EvidenceJudicial NoticeGeneral Conditions.
Courts take judicial notice of the general conditions in a state.
4. StatutesConstructionPurpose of Change.
In the construction of statutes, courts may consider the purpose of the change, sought to be effected, as it
may be deduced from a consideration of the whole subject-matter.
5. StatutesConstructionPrior Law.
In the construction of statutes, courts may consider prior existing law upon the subject under
consideration.
6. StatutesConstructionIntentMatters Omitted.
Stats. 1913, c. 144, sec. 1, divided the state into ten judicial districts and provided that for each of them
judges should be elected at the general election in 1914, and, as compiled, that for each of said districts
except the Second judicial district there shall be [elected one judge.
there shall be [elected one judge. For the Second judicial district there shall be] two judges electedthe
words in brackets being omitted from the enrolled bill. Section 3 fixed the salary of the judges in the
different districts, referring to the judge of different districts mentioned, and section 4 provided that the
Second judicial district should have two district judges, with concurrent jurisdiction and power to make
rules and regulations for the transaction of business in that district. Held, that the manifest intent was to
provide for the election of but one judge in other than the Second district; and hence that the words in
brackets, necessary to give it that effect, would be read into the act in order that it might express the true
legislative intent.
Original proceeding in prohibition by the State, on the relation of George A. Barlett,
against George Brodigan, as Secretary of State. Writ ordered to issue in part as prayed for.
George A. Bartlett, in pro. per.
Geo. B. Thatcher, Attorney-General, for Respondent.
This is an original proceeding in prohibition wherein the petitioner, as a taxpayer of the
State of Nevada, seeks to prohibit the secretary of state from issuing official certificates of
nomination for the office of district judge to more than one person for each political party in
any of the judicial districts in the State of Nevada, except the Second judicial district.
The legislature of 1913 (Stats. 1913, c. 144) seeking to redistrict the State of Nevada, and
to increase the number of judicial districts, and to provide judges therefor, passed an act, the
title of which is: An act to create judicial districts in the State of Nevada, provide for the
election of district judges therein, and to fix their salary, and to repeal all other acts in relation
thereto.
Section 1 of the act is as follows: The State of Nevada is hereby divided into ten judicial
districts. The counties of Storey, Douglas, and Ormsby shall constitute the First judicial
district; the county of Washoe shall constitute the Second judicial district; the counties of
Eureka and Lander shall constitute the Third judicial district; the county of Elko shall
constitute the Fourth judicial district; the county of Nye shall constitute the Fifth judicial
district; the county of Humboldt shall constitute the Sixth judicial district; the counties of
Esmeralda and Mineral shall constitute the Seventh judicial district; the counties of Lyon
and Churchill shall constitute the Eighth judicial district; the county of White Pine shall
constitute the Ninth judicial district; and the counties of Lincoln and Clark shall constitute
the Tenth judicial district.
Lander shall constitute the Third judicial district; the county of Elko shall constitute the
Fourth judicial district; the county of Nye shall constitute the Fifth judicial district; the county
of Humboldt shall constitute the Sixth judicial district; the counties of Esmeralda and Mineral
shall constitute the Seventh judicial district; the counties of Lyon and Churchill shall
constitute the Eighth judicial district; the county of White Pine shall constitute the Ninth
judicial district; and the counties of Lincoln and Clark shall constitute the Tenth judicial
district. For each of said districts judges shall be elected by the qualified electors thereof at
the general election in the year 1914, and every four years thereafter, except as otherwise
provided in this act, as follows: For each of said districts, except the Second judicial district,
there shall be [elected one judge. For the Second judicial district there shall be] two judges
elected.
The words inclosed in the brackets in the foregoing section, it is admitted, were placed
there by the compiler of the Statutes of 1913. The section in the enrolled bill as signed by the
governor did not contain the words inclosed in the brackets. The last sentence of section 1 of
the enrolled bill, which received the signature of the governor, was as follows: For each of
said districts, except the Second judicial district, there shall be two judges elected.
The words inclosed in brackets were undoubtedly omitted from the enrolled bill by
mistake.
Section 3 of the act is as follows: The salary of each judge herein elected, or appointed to
fill vacancies whenever such vacancies shall occur, shall be four thousand dollars per annum,
except the judge of the Fourth judicial district whose salary shall be four thousand five
hundred dollars per annum, and the judge of the Fifth judicial district whose salary shall be
six thousand dollars per annum, and the judge of the Seventh judicial district whose salary
shall be four thousand five hundred dollars per annum, and the judge of the First judicial
district, whose salary shall be three thousand dollars per annum; all of said salaries to be
paid in equal monthly installments out of the district judges' salary fund, hereby created
in the state treasury, which fund shall be supplied in the manner following, to wit: * * *"
annum; all of said salaries to be paid in equal monthly installments out of the district judges'
salary fund, hereby created in the state treasury, which fund shall be supplied in the manner
following, to wit: * * *
Section 4 of the act is as follows: The Second judicial district shall be entitled to and shall
have two district judges; they shall have concurrent and coextensive jurisdiction within said
district, under such rules and regulations as may be prescribed by law, and they shall have
power to make such rules and regulations as will enable them to transact judicial business of
said district in a convenient and lawful manner.
[1] It is the desire of the petitioner, as well as that of respondent secretary of state, that a
construction be placed upon this act by this court. By a line of decisions this court has
established the rule that we will not look beyond the enrolled bill in the office of the secretary
of state in order to ascertain the terms of the law. (State of Nevada, ex rel. Chase, Relator, v.
Rogers, 10 Nev. 250, 21 Am. Rep. 738; State v. Swift, 10 Nev. 176, 21 Am. Rep. 721; State
v. Glenn, 18 Nev. 34, 1 Pac. 186; State v. Nye, 23 Nev. 99, 42 Pac. 866; State v. Beck, 25
Nev. 68, 56 Pac. 1008; State v. Howell, 26 Nev. 93, 64 Pac. 466.)
[2] Were we inclined to modify the rule heretofore laid down and followed by this court,
limiting our inquiry to the enrolled bill, the matter would present little or no difficulty, but,
even were we inclined to modify that rule, such would be unnecessary in this instance. It is
the province of the courts to give effect and construction to legislative enactments at least to
the extent to which the legislative intent may be made operative by a fair and liberal
construction of the language used in the act. It is not within the province of the courts to
assume the powers or functions which properly belong to the legislature to the extent of either
enacting laws or supplying defective enactments with language sufficient to make them
operative for a presumed purpose, unless, from the reading of the entire act, the purpose and
intent is made manifest, in which instance courts are warranted in supplying sufficient
language to carry out the purpose and intent of the legislature to the end that the law
may be made operative for the purpose for which it was intended by the legislative body.
supplying sufficient language to carry out the purpose and intent of the legislature to the end
that the law may be made operative for the purpose for which it was intended by the
legislative body.
From the reading of sections 3 and 4 of the act under consideration, the error in section 1,
made by way of omission, is manifest. Moreover, from sections 3 and 4 the purpose and
intention of the legislature is made clear. In this statute, as appears from the enrolled bill,
there is an apparent conflict or ambiguity, as between the provisions of the last sentence of
section 1 and the provisions of sections 3 and 4. As from the enrolled bill now on file in the
office of the secretary of state conflicting provisions appear, it is necessary to construe the
entire act together to ascertain, if possible, the true legislative intent.
[3-5] Under the rules of statutory construction the court may consider prior existing law
upon the subject under consideration and may consider the purpose of the changes sought to
be effected, as the same may be deduced from a consideration of the whole subject-matter.
Courts take judicial notice of the general conditions in a state, and, where the legislature has
adopted a statute, the several provisions of which present an ambiguity, in endeavoring to
arrive at the true legislative intent, courts will consider that the legislature in changing a prior
law did so in view of conditions existing in the state that are within the common knowledge
of all. Unless the language used in a statute was so clear as to leave no room for construction,
this court would not be warranted in attributing to the legislature an intent to double the
number of district judges in the state, thereby entailing a great additional expense upon the
people for the next four years, where no possible condition existed warranting such an
enactment, nor would the court be justified in assuming that it was the intention of the
legislature to reduce the number of judges in the most populous district in the state from two
to one and increase the number in the smaller districts from one to two.
[6] From a reading of sections 3 and 4 it is apparent that the enrolled bill, as we find it on
file in the office of the secretary of state, contains an inadvertent omission of certain words in
section 1 necessary to be read into the section to remove the conflict between the later
sections of the act. Where, from a reading of the entire act, certain words necessary to give it
complete sense have manifestly been omitted, courts, under well-established rules of
construction, are permitted to read the same into the act in order that the law may express the
true legislative intent.
Section 4 of the act dwells specifically with the Second judicial district. It provides for two
judges in that district and also makes provision for the jurisdiction of those judges within that
district, giving to them concurrent and coextensive powers. No such provision as this is made
with reference to any other district created by the act. It is manifest that, had the legislature
intended to provide for the election of two judges in the other districts, it would have made
similar provision for the jurisdiction of such judges. Moreover, section 3 of the act bears out
the legislative intent. It must be observed that in fixing the salaries of the several judges in
their respective districts, and especially in the Fourth, the Fifth, the Seventh, and the First
judicial district, the word judge is used, thereby clearly conveying the intendment of the
legislature that there should be but one judge of the district court in the respective districts
therein named.
Section 3 of the act conveying as it does a singularity of idea with reference to the number
of judges of the district court in the districts named, and section 4 prescribing as it does
especially for the jurisdiction of the judges of that district in which it is especially prescribed
that two judges are to be elected, makes it manifest that the legislative intent, in the passage
of the act, was to provide for the election of but one judge in the First, Third, Fourth, Fifth,
Sixth, Seventh, Eighth, Ninth, and Tenth judicial districts.
It follows therefore that the writ should issue in part as prayed for.
It is therefore ordered that the writ issue restraining the secretary of state from issuing
official certificates of nomination for the office of district judge to more than one person for
each political party in any of the judicial districts of the State of Nevada, except the Second
judicial district.
Talbot, C. J., concurring:
I concur in the foregoing order and opinion, subject to the following modification and
distinction:
In the Swift, Glenn, Nye, Beck, and Howell cases, cited, it was held that the legislative
journals, bills originally introduced, amendments, or parol evidence, could not be received to
show that an act of the legislature, properly enrolled, authenticated, and deposited with the
secretary of state, did not become a law; and that the fact that the enrolled bill was signed by
the proper officers of each house, approved by the governor, and filed in the office of the
secretary of state, is conclusive as to the passage of the act as enrolled, and is the only
evidence thereof. By way of dictum, it was said that the court would not look beyond the
enrolled bill in the office of the secretary of state in order to ascertain the terms of the law.
This was aside from the questions involved as to whether the bills were conclusive as
certified and signed, and did not pertain to any ambiguity or uncertainty in the legislative
purpose as appearing from the terms or language of the act as approved. No question similar
to the one in this case, or as to whether the bill as originally introduced may be examined in
order to ascertain the legislative intent from ambiguous or conflicting expressions appearing
in the bill as passed, has heretofore been presented, considered, or determined by this court.
There is a difference readily discernible between the passage or validity of an act and the
interpretation or construction of its language or the ascertainment of the intention when
uncertain.
of its language or the ascertainment of the intention when uncertain. It becomes necessary to
determine which of the two purposes, expressed or apparent from a consideration of the
whole act, was the one the legislature intended should control. The fact that the bill as
originally introduced provided for only one judge in the judicial districts other than the
Second, and that it was not amended, may be considered as the most direct indication of the
intention of the legislature in passing the act, without overturning the decisions cited, under
which the act is deemed to have been regularly passed, and to be effective as certified, signed,
and approved. Following these decisions holding that the enrolled bill is conclusive, we may
not consider, as affecting the passage of the statute in question, anything in the legislative
action back of the bill as finally certified and approved to change the words it contains. We
are not to hold that the act was not duly passed, nor impeach the legislative action or purpose,
but, on the contrary, are to give effect to the legislative intent. To this end, may we not
consider whether by any mistake of a clerk, or oversight of the enrolling committee or
officers in signing the bill, the act as introduced and intended to be passed by the legislature
was different from the act as signed by the presiding officers of the senate and assembly and
by the governor, and consequently that, of the conflicting or uncertain provisions of the act as
approved, the one providing for one judge in each judicial district other than the Second was
intended to control?
In Blake v. National City Bank, 23 Wall. 307, 23 L. Ed. 119, the Supreme Court of the
United States held that it could ascertain the legislative intention by the mode, as shown by
the journals, in which amendatory words were introduced into an act which appeared
contradictory, and give it such construction as would carry out the intention of Congress.
In order to determine from the language of the act the real intention of the legislature, the
court will take judicial notice of such facts as that the statute in force at the time this act was
passed provided for two judges in the Second judicial district, consisting of Washoe
County, and for one judge in each of the other judicial districts; and of the necessity,
owing to the larger population and greater volume of business, for two judges in the
Second judicial district.
time this act was passed provided for two judges in the Second judicial district, consisting of
Washoe County, and for one judge in each of the other judicial districts; and of the necessity,
owing to the larger population and greater volume of business, for two judges in the Second
judicial district.
These conditions, and the wording of the act, make it apparent that there is a mistake or
omission. If the act is reasonably susceptible of a different construction, it is not probable that
the legislature, contrary to existing law and to the requirements in the different districts,
would suddenly and intentionally provide that there should be two judges in the districts
having less court work, and one judge in the district having more judicial business, which is
the only one in the state requiring two district judges; or that the legislature intended to
provide for two judges in the districts where they are least needed, and for one judge only in
the district where two are most needed, and where heretofore two have been provided. The
policy of the law is for the legislature to determine; but, if two conflicting intentions are
expressed by the language of the statute, the court will assume that the legislature really
intended that the one which is applicable, rather than the one which is contrary to, the existing
law and conditions, shall prevail.
It is a rule of construction that if the intention of the legislature is not clear from a reading
of the whole act, and there is an apparent conflict between the different sections, the later
provision of the act will control the earlier one apparently in conflict. This especially is
applicable to the conflict between section 4, which provides for two district judges for the
Second judicial district, and the language at the end of section 1 that for each of said
districts, except the Second judicial district, there shall be two judges elected. (Ex Parte
Hewlett, 22 Nev. 333, 40 Pac. 96.) Under this rule the provision in section 3 providing for
salary for only one judge in specified districts other than the Second may be regarded as
controlling the language in section 1 regarding two judges in each district other than the
Second, and as indicating that it was the intention of the legislature to have only one
judge in the districts other than the Second.
regarding two judges in each district other than the Second, and as indicating that it was the
intention of the legislature to have only one judge in the districts other than the Second.
The rule is well settled that clerical omissions and apparent mistakes are to be disregarded.
This rule has been applied to judgements, contracts, and various written instruments,
including acts of the legislature. In Sweeney v. Karsky, 25 Nev. 202, 58 Pac. 813, it was held
that forms of mistaken expression, such as clerical, verbal, or grammatical errors, can be set
right without any special remedies by ordinary rules of construction. This court, quoting with
approval from State v. McElhaney, 20 Mo. App. 587, said: All modern courts appear to have
united upon a rule, in cases at law as well as in cases in equity, that obvious clerical mistakes
on the face of a written contract may be corrected with reference to the manifest intent of the
parties, as gathered from the whole instrument.
In the amendment of a legislative act in Wisconsin the words or under, inserted after the
words any female of the age of twelve years, as a mistake in engrossing instead of the
words or more, were held to be a mere clerical mistake which should be disregarded. (State
v. Stillman, 81 Wis. 124, 51 N. W. 260.)
In State v. Deuel, 63 Kan. 811, 66 Pac. 1037, it was held that where a particular sentence
in a statute is so ungrammatical or so punctuated as not to make sense, and the legislative
intent is clearly ascertainable from the context and statutes in pari materia, the supreme court
will put that construction on the statute intended by the legislature, and for such purpose may
change the punctuation and capitalization to express such intention.
In Holmberg v. Jones, 7 Idaho, 752, 65 Pac. 563, the court said that, in order to carry out
the will of the legislature which has been expressed in an imperfect way, the court will
interpolate punctuation or words evidently intended to be used into the statute.
Under a statute providing that all penal judgments in the district courts may be examined,
affirmed, reversed, or modified by the supreme court, it was held that the word "penal"
before judgments must be read "final," as such interpretation will render the whole
chapter consistent with the intent and purpose.
or modified by the supreme court, it was held that the word penal before judgments must be
read final, as such interpretation will render the whole chapter consistent with the intent
and purpose. (Moody v. Stephenson, 1 Minn. 401.)
A statute provided that application for assessment for damages should be made in a
manner hereafter directed, but no direction followed. It was held that the legislature
intended to use the word hereinbefore. (Waring v. Cheraw, 16 S. C. 416.)
In considering an act of Congress, it was held that, if there be a mistake apparent upon the
face of the act which may be corrected by other language in the act itself, the mistake is not
fatal. (Blanchard v. Sprague, Fed. Cas. No. 1517.)
In the interpretation of statutes the will of the legislature controls the courts. (State v. Ross,
20 Nev. 61, 14 Pac. 827; Maynard v. Newman, 1 Nev. 271; Kirman v. Powning, 25 Nev. 378,
60 Pac. 834, 61 Pac. 1090; State v. Blasdel, 4 Nev. 241; Fitch v. Elko County, 8 Nev. 271;
Atkins v. Fiber Co., 18 Wall. 272, 21 L. Ed. 841; Wilkinson v. Leland, 2 Pet. 627, 7 L. Ed.
542; Webster v. Cooper, 14 How. 488, 14 L.Ed. 510.)
When the provisions are not clear, the primary object is to ascertain the legislative intent.
This is to be gathered from the language and from the benefits to be attained. (Maynard v.
Johnson, 2 Nev. 16.)
If the law is uncertain, that construction, within the meaning of the act, should be adopted
which will be least likely to produce mischief. (O'Neal v. Mining Co., 3 Nev. 141; Arnold v.
Stevenson, 2 Nev. 234.)
If from the whole act taken together the general object is apparent, any sentence which it is
impossible to interpret in accord with the general purpose may be ignored. (Roney v.
Buckland, 4 Nev. 45.)
If the construction of a statute in a certain way will result in manifest injustice, the language
will be scrutinized to see if it will not admit of some other interpretation. (State v.
Kruttschnitt, 4 Nev. 178.)
In construing an act, it is the duty of the court to ascertain what the legislature had in view
in passing it, in order to secure, if possible, the object intended by the statute.
ascertain what the legislature had in view in passing it, in order to secure, if possible, the
object intended by the statute. (State v. Ross, 20 Nev. 61, 14 Pac. 827; Odd Fellows' Bank v.
Quillen, 11 Nev. 109.)
The meaning of the words used may be sought by examining the context and by considering
the subject-matter and reason or causes which induced the legislature to act. The statute
should be so construed as to avoid absurd results. (State v. Dayton, 10 Nev. 155; Ex Parte
Siebenhauer, 14 Nev. 365.)
All parts of the same act should be considered together; and if one, by standing alone, is
obscure, its meaning may be disclosed by another, and consideration of the entire act may
restrict the terms of a particular clause. The purpose of the statute should not be defeated by
an overstrict construction. If the will of the legislature is apparent, the court should place such
a construction on the language of the act as will give it force and not nullify its manifest
purpose. (Ex Parte Prosole, 32 Nev. 378, 108 Pac. 630.)
If the statute admits of more than one construction, that one will be adopted which will
best serve to carry out its meaning and purpose. (Bernier v. Bernier, 147 U. S 242, 13 Sup.
Ct. 244, 37 L. Ed. 152; Wayman v. Southard, 10 Wheat. 1, 6 L. Ed. 253.)
If the meaning of the act is doubtful, its purpose may be considered. A construction which
would render a statute inefficient, or which would cause grave public injury, should be
avoided if its language indicates an intention which would justify a more reasonable
interpretation. All statutes should receive such a sensible construction as will effectuate the
legislative intention and if possible avoid an unjust consequence. The reason of the law in
such cases should prevail over the letter. (United States v. Saunders, 120 U. S. 126, 7 Sup.
Ct. 467, 30 L. Ed. 594; United States v. Kirby, 7 Wall, 482, 19 L. Ed. 278; Oates v. First
National Bank, 100 U. S. 239, 25 L. Ed. 580; Lau v. United States, 144 U. S. 47, 12 Sup. Ct.
517, 36 L. Ed. 340; Hawaii v. Mankichi, 190 U. S. 197, 23 Sup. Ct. 7S7, 47 L. Ed. 1016;
Murray v. Baker, 3 Wheat. 541, 4 L. Ed. 454.)
Sup. Ct. 787, 47 L. Ed. 1016; Murray v. Baker, 3 Wheat. 541, 4 L. Ed. 454.)
The real intention of the legislature, indicated by the statute considered as a whole and by
the existing law and conditions, should be given effect; and the mistake, which was so
apparent that the printer inserted words to supply the omission, should not be held to require
the election of two district judges in the several judicial districts other than the Second, or the
calling of a special session of the legislature to avoid this result.
____________
37 Nev. 257, 257 (1914) Miller v. Miller
[No. 2106]
ALEXANDER McVEIGH MILLER, Appellant, v.
MITTIE POINT MILLER, Respondent.
[142 Pac. 218]
1. DivorceDefaultOpeningRemarriage of Party.
That since the decree of divorce granted plaintiff he has remarried is no ground for refusing to set
aside the decree, if it was obtained through fraud on the court and defendant.
2. DivorceProcessSubstituted ServiceCompliance with Order.
The order for substituted service directing the mailing of a copy of the summons to defendant at two
addresses, mailing it addressed to her at one of those places, and instead of the other, at a third place, not
being a full compliance with the order, does not give the court justification.
3. DivorceDefaultDecreeSubstituted ProcessFiling of Affidavit of Compliance.
That the affidavit of mailing of a copy of the summons to defendant in divorce, as required by the
order for substituted service, was not filed when default was entered or when trial was had, and the
decree granted, should preclude granting of the decree; and a decree granted without affirmative proof of
substantial compliance with an order for substituted service is, at least, voidable.
4. DivorceJudgmentOpening DefaultSubstituted ProcessNoncompliance with
Order.
Aside from the question of fraud, the affidavit of mailing, disclosing that the copies of the summons
and complaint, if mailed at all, were mailed to defendant at a different address from that directed by the
order for substituted process, warrants the granting of an order vacating the default.
5. DivorceJudgmentOpening DefaultAbsence of Notice of Action.
Even if copies of the summons and complaint were mailed defendant, as directed by the order for
substituted process, yet her default can be set aside, if she moves to vacate it within six months of entry of
the decree, and it is found that through no fault of her she had failed to receive either such copies or notice
of pendency of the action.
6. DivorceAppealReviewFinding as to Fraud.
Whether fraud was committed on the court, whereby a decree of divorce was obtained, is a question of
fact for the determination of the trial court, on motion to vacate, from all the evidence; and its
determination, on a substantial conflict in the evidence, cannot be disturbed on appeal.
7. DivorceOpening DefaultDelay in Bringing on Hearing.
Plaintiff in divorce may not complain that defendant did not sooner, after filing her motion to open the
default and set aside the decree, bring it on for hearing, she having done so at the first opportunity at which
the regular judge, who granted and signed the decree, was present, though, at his request, a judge of
another district had been sitting.
Appeal from the Fourth Judicial District Court, Clark County; Peter J. Somers, Judge,
presiding.
Action by Alexander McVeigh Miller against Mittie Point Miller for divorce. From an
order setting aside defendant's default and from an order denying plaintiff's motion to amend
the affidavit of mailing of copies of the summons and complaint, plaintiff appeals. Affirmed.
[For other proceedings in this case, see 36 Nev. 115, 442.]
Augustus Tilden, for Appellant.
Stevens & Van Pelt, for Respondent.
An order of the district court of the Fourth judicial district was entered setting aside the
default of respondent herein, in an action wherein appellant, Alexander McVeigh Miller, was
plaintiff, and respondent, Mittie Point Miller, was defendant. A decree of divorce was granted
to appellant by the court below, and within six months thereafter the respondent moved to set
aside the judgment and default entered against her, upon the ground that she had not
been served with summons in the action and had no knowledge of its pendency.
the judgment and default entered against her, upon the ground that she had not been served
with summons in the action and had no knowledge of its pendency. At the hearing of
respondent's motion to vacate, appellant moved to amend the affidavit of mailing filed by
attorney for appellant, upon the ground that a clerical error appeared in the affidavit as to the
date of mailing. The trial court after having submitted to it many voluminous affidavits as
well as oral evidence, together with the files and records in the case, ordered that the
judgment and default be set aside and at the same time denied appellant's motion to amend
the affidavit of mailing. From these orders appeal is taken to this court.
The record in this case as it is before us furnished ample grounds for many observations.
We deem it unnecessary to dwell at length upon the acts or conduct of the appellant,
notwithstanding the fact that they are at least circumstances tending strongly to confirm the
conclusions which we have arrived at.
[1] The fact that appellant has, since the decree of divorce was entered in his favor by the
trial court, remarried, constitutes no ground for refusing to set aside the decree, if, from the
record and the facts as presented to the trial court, the decree was obtained through fraud or
deception perpetrated upon that court and upon the respondent.
It is unnecessary to touch upon many of the facts and circumstances presented by the
record. The respondent asserts in her affidavit that she had no notice of the pendency of a
divorce action against her, other than one commenced by plaintiff herein in the State of West
Virginia. In this assertion she is supported by the affidavit of Mrs. Irene Miller Chainey,
daughter of appellant and respondent, and also by the affidavit of Ralph W. Chainey, at
whose house she resided.
The order for substituted service contains an indorsement as having been filed November
18, 1910, by Ralph W. Thomas, as deputy clerk, and a further indorsement as follows: This
paper was put into the files by me as clerk of this court September 6, 1911, at the request
of Richard Busteed.
of this court September 6, 1911, at the request of Richard Busteed. [Signed] Harley A.
Harmon, Clerk.
From this it appears that the order for publication had been withdrawn from the files and
was in the possession of appellant's attorney until September 6, 1911.
The affidavit of Alexander McVeigh Miller for an order directing service of summons by
publication sets forth: That to the best information and belief of deponent said defendant is
residing at present either in the city of Boston, Mass., or in Alderson, Greenbrier County, in
the State of West Virginia.
And further states: That a just cause of action exists herein in favor of plaintiff and
against said defendant, as appears by said sworn complaint on file herein.
The order for substituted service as made by the presiding judge pursuant to the affidavit is
as follows: On reading and filing the foregoing affidavit and upon the papers herein, it is
ordered that service of the summons and complaint herein be made upon the defendant herein
by publication, and that the same be published once a week for a period of six weeks in the
Las Vegas Age, a newspaper published in Las Vegas, Clark County, Nevada, and that a copy
of said summons and a certified copy of said complaint be deposited in the postoffice at Las
Vegas, Nevada, postpaid and addressed to said defendant at Boston, Mass., at No. 370 Arbor
Row, and to Alderson, Greenbrier County, West Virginia.
The affidavit of mailing, as made by Richard Busteed, attorney for appellant, sets forth that
on the 5th day of February, 1910, he deposited in the postoffice at Las Vegas a true and
correct copy of the summons in the action, together with a true and correct copy of the
complaint, upon which first-class postage thereon was fully prepaid by him. He further states
that the envelope in which these instruments were inclosed was addressed to the respondent,
Mittie Point Miller, at Alderson, West Virginia, and at Arbor Way, Forest Hill, Boston,
Mass.
The date of mailing, according to this affidavit, was nine months and twelve days prior to
the commencement of the suit.
of the suit. Appellant contends that the date of mailing, as set forth in the affidavit of Richard
Busteed, is an error and prayed the court below to be permitted to amend the same to conform
to the truth. If this were the only error in the proceedings, we might hesitate; but the affidavit
of mailing, aside from this error as to the date of mailing, if such be an error, contains
statements vital to the matter at issue.
[2] The order signed by the presiding judge for service of summons by publication and
mailing directed that copy of the summons and certified copy of the complaint be deposited in
the postoffice at Las Vegas, Nevada, postpaid and addressed to the defendant, Mittie Point
Miller, at No. 370 Arbor Row, Boston, Mass., and to Alderson, Greenbrier County, W. Va.
The affidavit of mailing, as filed by Attorney Busteed, sets forth: In the same manner I
mailed to the defendant copies of the summons and complaint in this cause, addressed to the
defendant at Arbor Way, Forest Hill, Boston, Massachusetts.
In appellant's application to amend the affidavit of mailing he seeks only to change the
date on which it is alleged the act of mailing took place. Had the court permitted the
amendment upon the application of plaintiff, which in our judgment, based upon the entire
record in this case, the court was justified in refusing, although amendments should be
liberally allowed. This, however, would not cure the vital defect in the affidavit wherein it
appears that, if a copy of the summons and complaint was mailed at all, it was mailed to an
entirely different address from that directed by the court in its order for substituted service.
By the rule as laid down by the court in the case of Victor M. & M. Co. v. Justice Court, 18
Nev. 26, 1 Pac. 831, nothing less than a full compliance with the order for substituted service
will suffice to give the trial court jurisdiction.
It appears from the record in this case that Mr. Busteed, attorney for appellant, sought to
have the application to amend heard by Judge Somers, while the latter was presiding in Las
Vegas at the request of the regular judge, and in his argument to Judge Somers, as taken
down by the court reporter, it appears that Mr.
and in his argument to Judge Somers, as taken down by the court reporter, it appears that Mr.
Busteed stated that the mistake in the date of the affidavit of mailing was made by an
inexperience clerk of the court; but in the affidavit of Attorney Busteed, made in support of
the application for permission to amend, he states as follows: The affiant avers and alleges
that the error in the record in this case is due wholly to the inadvertence and possible
carelessness, of himself, which was superinduced by the turmoil and excitement of the trial of
causes at the term of this court which was then in session.
At another place in his affidavit Attorney Busteed states that the error in the affidavit of
mailing was brought about by reason of his being actively engaged in the trial and
presentation of causes to the court, and that he knew that the act of mailing had taken place
on the same day on which the order was made directing substituted service, and that in order
to properly make out his affidavit of mailing he inquired, at the time of entering the default,
of the clerk as to the date on which the order for substituted service had been entered, and that
the clerk informed him that the order was entered on February 6, 1910. It must be observed,
however, that his affidavit of mailing does not even conform to his statement made in this
respect, for it appears in his affidavit of mailing that on the 5th day of February, 1910, he
mailed the summons and complaint to respondent. This was one day prior to the date which
he asserts was given to him by the clerk.
[3] This affidavit of mailing, as appears from the record, was not on file, either at the time
at which the default was entered, or at the time at which the case was tried and the decree
granted. This fact of itself should have precluded the trial court from granting the decree, and
a decree granted in a case where there is an order for substituted service, without affirmative
proof of substantial compliance with the order, is at least voidable, if not entirely void.
There is another significant fact disclosed by the record in this case, and it applies more
directly to the affidavit of the appellant presented to the trial court for an order for
substituted service.
in this case, and it applies more directly to the affidavit of the appellant presented to the trial
court for an order for substituted service. In that affidavit there appears the statement, in
substance, that the plaintiff did not know the exact whereabouts or address of his wife, Mittie
Point Miller. It appears, however, that he was in almost constant communication with his
daughter, Mrs. Irene Miller Chainey, and that respondent was residing at the latter's home,
and from the supplemental affidavit of Mrs. Irene Miller Chainey it appears that she received
many letters from the appellant and she gives the place of mailing of each of these letters in
her affidavit. It appears that these letters were mailed at various times from Denver, from
Long Beach, and from San Diego, but none appear to have been mailed to her by the
appellant from Las Vegas, notwithstanding the fact that during nearly all of this time
appellant says that he was a resident of and living in Las Vegas, Clark County, Nevada. Mrs.
Chainey, daughter of appellant and respondent herein, was a resident of Boston, Mass., and
her home address was No. 370 Arbor Way.
The appellant in his affidavit sets forth that he kept his address from the defendant until
the suit for divorce was filed, but it appears from the record that on January 31, 1910, he filed
his first suit for divorce in Las Vegas against respondent, and on February 6, 1910, he filed
his affidavit for order of publication of summons, and pursuant to his affidavit an order was
made that summons be published and that a copy of the summons and certified copy of the
complaint be forwarded to the defendant at her address in Boston, Mass., and Alderson, W.
Va. This first suit was later dismissed by the trial judge because the evidence disclosed that
plaintiff had not resided the required length of time in Clark County. Hence from the record it
is disclosed that two separate cases were commenced wherein this appellant was plaintiff and
this respondent was defendant. In each case an affidavit of mailing appears wherein it is
stated that the summons and complaint in the respective actions were mailed, addressed to
the defendant.
actions were mailed, addressed to the defendant. If the affidavit in the first instance were true,
we are unable to account for appellant's statement made with reference to the last case,
wherein he states that he desired to keep his address from defendant until the suit for divorce
was filed. Another significant circumstance appears in the fact that, although there is an
affidavit of mailing in each case, none of the papers were received by respondent. The record
in this case makes it apparent that the appellant was at all times aware of the address and
place of abode of his wife and could have notified her of the pendency of his suit without the
slightest difficulty, or inconvenience on his part. The mere mention of his suit, in his letters to
his daughter, at whose home the respondent lived, would have at least thrown the color of
good faith about his conduct.
[4] Aside from the question of fruad, the so-called affidavit of mailing, disclosing as it did
that the papers in the case, if mailed at all, were mailed to a different address from that
directed by the order for sustituted service, would constitute a fact in behalf in itself sufficient
to warrant the court in granting the order vacating the default. The disclosure made in this
respect by the affidavit of mailing is a most convincing circumstance in support of the
declaration of respondent that she had received no notice of the pendency of the action.
[5] In our judgment it is immaterial as to whether or not fraud was actually perpetrated in
this case. If every act of the appellant and his counsel in this case had been regular and the
summons and complaint had actually been mailed to the respondent within the proper time, it
was within the province of the court to set aside the default of the respondent, if the
respondent moved to vacate the same within six months from and after the entering of the
decree, and if the court found that through no fault of the respondent she had failed to receive
the summons and complaint or had failed to receive notice of the pendency of the action.
[6] The question as to whether or not a fraud was committed upon the court by reason of
which a decree of divorce was secured in favor of appellant was one of fact to be
determined by the trial court upon the motion to vacate, from all the evidence and
circumstances presented to it.
committed upon the court by reason of which a decree of divorce was secured in favor of
appellant was one of fact to be determined by the trial court upon the motion to vacate, from
all the evidence and circumstances presented to it. Following the long-established rule of this
court that where there is a substantial conflict in the evidence the judgment of the trial court
will not be disturbed, and in view of the fact that there is abundant evidence in this case to
support the orders entered by the trial judge, those orders should be affirmed.
[7] Appellant contends that respondent should have prosecuted her motion to set aside the
default at an earlier date. It appears from the record, however, that attorneys for respondent
brought the matter on for hearing at the first opportunity at which Judge Taber, the regular
judge of the district, was present in Clark County. It is contended by appellant that as Judge
Somers, the judge of another district, was present in Clark County at an earlier date after the
filing of the motion, and sitting at the request of Judge Taber, the matter should have been
presented to him for determination. It appears from the record that Judge Taber heard the
cause in the first instance, and it was he who granted the decree of divorce, which decree
respondent sought to have set aside. Without a special request made by Judge Taber, it was
not improper for Judge Somers to have refused to hear or determine the matter in the absence
of the consent of all parties.
It follows that the order opening and setting aside the default, as well as the order denying
appellant's motion to amend, should be affirmed.
It is so ordered.
Norcross, J., concurring:
I concur in the judgment. As said by this court in Symons-Kraussman Co. v. Reno Liquor
Co., 32 Nev. 243, 107 Pac. 97, the wide power of discretion vested in trial courts on motions
of this character in furtherance of justice" may not be disturbed except in a clear case of
abuse of discretion.
justice may not be disturbed except in a clear case of abuse of discretion. From the record in
this case, disclosing many affidavits in support of and in opposition to the motion, it cannot
be said that the court abused its discretion in setting aside the default. I am of the opinion,
however, that the court should have permitted counsel for the plaintiff to have filed any
further affidavit he desired to relative to the mailing of copies of summons to the defendant.
A liberal rule prevails in permitting amendments. (Elder v. Frevert, 18 Nev. 279, 3 Pac.
237.) The original affidavit filed was clearly erroneous. If it or the proposed amendatory
affidavit contained statements wilfully false, the affiant could be held responsible therefor in
appropriate proceedings thereafter. Whether the court should feel justified in accepting the
affidavit as conclusive of the averments therein contained is a different matter.
It seems that the order for judgment was made without a reading or examination of the
affidavit of mailing; in fact, that the order was made before such affidavit had been filed.
Much of the subsequent controversy might have been avoided by a little more care in this
regard. If it were necessary to determine that perjury had been established in this case, I
should have some hesitancy in concurring in the judgment. Proof of perjury must be clear and
convincing. I think a serious question is presented as to whether the proofs are sufficient to
warrant the conclusions of the trial court in this respect. In the view I take of this case,
however, it is immaterial whether perjury was or was not committed in the proceedings. The
defendant was not personally served with process in this case, and she had a right to move
within six months after the rendition of the judgment to answer to the merits of the original
action. (Rev. Laws, sec. 5084; Lang Syne M. Co. v. Ross, 20 Nev. 136, 18 Pac. 358, 19 Am.
St. Rep. 337; Young v. Fink, 119 Cal. 109, 50 Pac. 1060.)
Defendant accompanied her motion to set aside with a proposed answer and other
affidavits of merits. It cannot therefore be said that the order was improvidently entered.
____________
37 Nev. 267, 267 (1914) Clow v. West
[No. 1840]
GRACE CLOW, Respondent, v. N. H. WEST, as Administrator of the Estate of B. G. Clow,
Deceased, Et Al., Appellants.
[142 Pac. 226]
1. JudgmentDismissal and NonsuitEffect.
An order for the nonsuit and dismissal of an action is not a judgment on the merits, and does not bar
subsequent proceedings on the same cause of action.
2. Frauds, Statute ofContracts to Devise.
A contract to devise property in consideration of plaintiff's rendition of services to deceased and of
remaining with him until his death is not, where fully performed on the part of plaintiff, within the statute
of frauds.
3. Limitation of ActionsRunning of Statute.
Where plaintiff, to whom deceased had agreed to leave specified real property in consideration of her
remaining with and caring for him during his declining years, was in possession, claiming to own the
property, limitations did not run against her right of action against the administrator of the deceased to
compel specific performance of the contract, notwithstanding his denials of her ownership, for plaintiff
had an equitable title.
4. Specific PerformanceContracts to DeviseEvidenceSufficiency.
In an action for specific performance of an agreement to leave plaintiff real property in consideration
of her remaining with and caring for deceased during his declining years, evidence held sufficient to
warrant specific performance, showing that possession was given to plaintiff, and that, in reliance upon
the agreement, she had changed her position in such a manner that she could not be made whole by
damages.
Appeal from the Second Judicial District Court, Washoe County; Peter Breen, Judge,
presiding.
Action by Grace Clow against N. H. West, as administrator of the estate of B. G. Clow,
deceased, and others. From a judgment for plaintiff, defendants appeal. Affirmed.
Cheney, Massey & Price, W. A. Massey, Benjamin Curler, and F. D. King, for Appellants.
James Glynn, for Respondent.
Thomas F. Moran, amicus curiae.
37 Nev. 267, 268 (1914) Clow v. West
Per Curiam:
This is a suit to enforce the specific performance of an oral agreement to convey real estate
and for such other and different relief in the premises as is meet and agreeable to good
conscience and equity.
The complaint alleged that one B. G. Clow died intestate in the county of Washoe on the
19th day of January, 1902, leaving an estate in said county consisting of real and personal
property of the value of more than $50,000; that thereafter, and on the 6th day of February,
1903, the said appellant N. H. West was appointed administrator of the estate of said B. G.
Clow, deceased, and has ever since been such administrator. The complaint further allege:
That on or about the ..... day of July, 1890, the said B. G. Clow was the owner of, and in
possession of, the south half of the northwest quarter and the southwest quarter of the
northeast quarter of section 10, in township 19 north, range 19 east, M. D. & M., State of
Nevada, containing 120 acres more or less, with the improvements thereon, and all water and
water rights belonging thereto and used thereon, and was occupying the same as a homestead
in company and association of his wife, Mrs. Jessie Clow, and plaintiff herein. That at said
time plaintiff was of the age of 19 years, and she expressed to the said B. G. Clow, deceased,
her desire, wish, and intention to leave the home of the said B. G. Clow, deceased, where she
had resided for several years prior thereto and enter upon independent employment for the
purpose of endeavoring to secure a competency of her own, and that thereupon the said B. G.
Clow, deceased, earnestly requested and importuned plaintiff to remain with him and his said
wife and to assume the control of his and her household and domestic affairs, and counsel
with and assist him in the management and conduct of his business affairs, and agreed with
the plaintiff that if she would do so, in consideration thereof, and services so rendered, and to
be rendered, by said plaintiff, and in consideration of the premises, she should then have,
and become the absolute owner of, the foregoing real estate and improvements, subject
only to a life estate therein and control thereof by the said B. G. Clow and his wife, Mrs.
37 Nev. 267, 269 (1914) Clow v. West
of the premises, she should then have, and become the absolute owner of, the foregoing real
estate and improvements, subject only to a life estate therein and control thereof by the said
B. G. Clow and his wife, Mrs. Jessie Clow, and that as a further consideration of said services
to be so rendered by plaintiff, and to be rendered by her, and as a full consideration therefor,
the said B. G. Clow agreed with plaintiff that, subject to such life estate before mentioned, he
would prior to his death convey the said real estate and improvements to plaintiff, by a good
and sufficient paper title, and by a good and sufficient deed, and, in the event of his death
before so doing, his legal representative, by his last will and testament should be instructed by
the terms thereof to execute such a deed and deliver the same to this plaintiff. That thereupon,
and in express reliance upon the said promise and agreement, and without further or other
consideration, the plaintiff did, in consideration of the premises, enter into and take full
possession of all of said premises mentioned aforesaid, under and according to the terms of
said agreement, subject to the life estate therein and management thereof of the said B. G.
Clow, as before mentioned, and faithfully act as the manager of the household and domestic
affairs of the said B. G. Clow, and as his adviser, counselor, amanuensis, and confidant, and
being until the plaintiff was of the age of 31 years. That the said Jessie Clow, wife of the said
B. G. Clow, deceased, died on or about the 25th day of January, 1900, and left no heirs other
than the said B. G. Clow, deceased, and that said real estate hereinbefore mentioned, except
in so far as the same was vested in plaintiff aforesaid, was at all times the property of the said
B. G. Clow, deceased. That plaintiff, in reliance upon the agreement hereinbefore mentioned,
fully performed all her obligations thereunder. That the said B. G. Clow failed, neglected, and
omitted to either convey the said real estate and improvements to plaintiff before his death or
by his last will and testament to instruct and direct his legal representative so to do.
37 Nev. 267, 270 (1914) Clow v. West
legal representative so to do. That plaintiff, ever since said agreement above mentioned was
entered into by and between plaintiff and the said B. G. Clow, entered into and remained in
full, quiet, peaceable, open, notorious, adverse possession of said premises as to all the world,
save and except the life estate and management thereof reserved by the said B. G. Clow, until
the death of the said B. G. Clow, and thereafter, and ever since said death, she has been and is
now in said possession of all of said premises, according to the terms of said agreements,
excepting in so far as the defendant N. H. West, said legal representative of said deceased,
has wrongfully trespassed upon said premises, and against the will of this plaintiff.
Defendants in their answer filed denied the allegations in the complaint as to the oral
agreement for conveyance of the land in question to the plaintiff, respondent herein. For
further and separate defenses, defendants set up the statute of frauds and the statutes of
limitations, and further that the subject-matter of the action was res adjudicata. the case was
tried by the court with the aid of a jury. Certain specific questions were submitted by the
respective parties to the jury, which answered all questions as to the oral agreement alleged in
favor of the plaintiff. Subsequently the court made and filed findings of its own from which it
deduced certain conclusions of law upon which a judgment and decree were entered in favor
of the plaintiff; that all right, title, and interest, which the said defendant N. H. West acquired
by operation of law, as administrator of the estate of B. G. Clow, deceased, in and to the land
and premises in controversy, be, and the same is, hereby by this decree vested in Grace Clow
in fee simple and absolute, and further that all right, title, and interest of the other defendants,
as heirs of law of B. G. Clow, deceased, be, and the same is, hereby by this decree vested in
Grace Clow in fee simple and absolute, and further vesting all legal and equitable title
whatsoever in the plaintiff. It was further ordered and decreed that the defendants are
personally enjoined from claiming, holding, or asserting any power or authority over or
concerning said lands or premises or from making, executing, or delivering any
conveyance of said property and in any manner interfering therewith.
37 Nev. 267, 271 (1914) Clow v. West
claiming, holding, or asserting any power or authority over or concerning said lands or
premises or from making, executing, or delivering any conveyance of said property and in any
manner interfering therewith.
The court found, among others, the following facts:
That plaintiff is an heir at law of B. G. Clow, deceased, now of the age of 36 years, and
from the year 1890 until the death of B. G. Clow plaintiff resided with the said B. G. Clow
upon said premises, at his solicitation and request. That plaintiff had a joint equitable
possession of said premises with B. G. Clow from the year 1890 until his death. That plaintiff
had the sole, exclusive, equitable possession of said premises from the death of B. G. Clow
on January 19, 1902, until the appointment of N. H. West as administrator on February 11,
1902. That in July, 1890, or thereabouts, the plaintiff, Grace Clow, expressed her intention to
B. G. Clow to leave said ranch, to make her living elsewhere. That at the time plaintiff
informed B. G. Clow of her intention to leave said ranch in July, 1890, or thereabout, B. G.
Clow made and entered into an oral agreement with the plaintiff, Grace Clow, that if she
would remain with himself and wife on said Home Ranch, and assume control and
management of his household and domestic affairs, and counsel and assist him in the
management and conduct of his business affairs, and act as his adviser, counselor,
amanuensis, and confidante until the death of himself and wife, she should then have and
become the absolute owner of said premises, improvements thereon, water, and water rights
connected therewith, subject to a life estate in B. G. Clow and his wife; and that he would,
prior to his death, convey the same to plaintiff, or that, if he failed to so convey in his
lifetime, he would cause the same to be conveyed to her by his last will and testament; and
that said agreement is the same agreement set forth in plaintiff's complaint herein. That Grace
Clow consented to and relied upon said agreement and remained upon said ranch, performing
personal, domestic, and other services for B. G. Clow from July, 1890, until his death on
January 19, A. D. 1902.
37 Nev. 267, 272 (1914) Clow v. West
on January 19, A. D. 1902. That the wife of B. G. Clow died about two years prior to his
death. That the personal, domestic, and other services rendered by Grace Clow to B. G. Clow
from July, A. D. 1890, until his death on January 19, A. D. 1902, were wholly referable to
and pursuant to the said agreement made between them in July, A. D. 1890. That, upon the
death of B. G. Clow, Grace Clow had fully performed her agreement with B. G. Clow. That
the services so rendered to B. G. Clow by the plaintiff were not by B. G. Clow intended to be
paid for by a money consideration, or any consideration other than the conveyance of said
premises to Grace Clow by the said B. G. Clow by his deed, or by his last will and testament.
That Grace Clow has ever since the death of B. G. Clow remained upon said ranch,
occupying it as her home, and in the equitable possession thereof subject to the statutory
possession of N. H. West as administrator. That the services rendered by plaintiff to B. G.
Clow were largely of a peculiar personal nature, incapable of being estimated in damages.
That N. H. West, as administrator supervising the farming of said ranch and the gathering of
the crops thereon each season since the death of B. G. Clow, paid the expenses thereof, and
paid all taxes due thereon. That all the acts and doings of said N. H. West, pertaining to said
premises, were done pursuant to his duty as administrator, and not otherwise.
Certain other findings were requested by counsel for defendants which it will not be
necessary to set out, as the questions thus presented will be discussed later in the opinion.
The first question in logical order to be considered is whether the defense of res
adjudicata can be sustained. It appears from the finding requested by defendants and allowed
by the court that, prior to the institution of the present action, a suit upon the same alleged
oral contract was instituted against the same defendants; that an answer to the complaint was
filed, and that the case proceeded to trial before the court with the aid of a jury; that the
plaintiff submitted her proofs and rested her case; that thereupon the defendants moved
the court to withdraw the suit from the jury and have a judgment of nonsuit; that upon
such motion the following order was entered: "The motion of defendants to withdraw the
jury and discharge the jury was ordered granted.
37 Nev. 267, 273 (1914) Clow v. West
that the plaintiff submitted her proofs and rested her case; that thereupon the defendants
moved the court to withdraw the suit from the jury and have a judgment of nonsuit; that upon
such motion the following order was entered: The motion of defendants to withdraw the jury
and discharge the jury was ordered granted. The motion for nonsuit was granted, and it was
ordered that the case be dismissed.
[1] The order for nonsuit and the dismissal of the action is not a judgment upon the merits
and not a bar to a subsequent action. (Laird v. Morris, 23 Nev. 34, 42 Pac. 11.) See Nevada
Digest, p. 628, cases citing Laird case; 14 cyc. 393.
[2] It is well settled that a contract such as is sued upon in this case is not within the statute
of frauds, and this phase of the case will be given no further consideration than the citation of
the following authorities: Cory v. Hyde, 49 Cal. 471; Development Co. v. Thornburg, 46 W.
Va. 99, 33 S. E. 108; Berg v. Moreau, 199 Mo. 416, 97 S. W. 901, 9 L. R. A. n. s. 157.
[3] We think, also, that there is no merit in the contention that this action is barred by the
statute of limitations. Conceding, for the purpose of a consideration of this question, that the
agreement was sufficiently proven and fully complied with upon the part of plaintiff, her title
to the property vested immediately upon the death of B. G. Clow. Her equitable title to the
property was complete at that time. She remained in possession under claim of title up to the
time of bringing suit and the trial of the cause. Any assertion of right of possession or
exercise of control by the defendant West, by virtue of his authority as administrator, did not
affect her possession and would not affect her right of possession. This is not a case or an
action founded upon an agreement not in writing, where there has not been full performance
of the contract upon the part of the party seeking relief, but is an action to establish a full,
legal title, where the full, equitable title is already vested in the party in possession, and where
the equitable title is such that the full, legal title ought in equity and good conscience to be
vested in the holder of such equitable title.
37 Nev. 267, 274 (1914) Clow v. West
such that the full, legal title ought in equity and good conscience to be vested in the holder of
such equitable title. It is well settled that the statute of limitations does not run against the
holder of the equitable title in possession. (Love v. Watkins, 40 Cal. 548, 6 Am. Rep. 624;
Gerdes v. Moody, 41 Cal. 335; Day v. Cohn, 65 Cal. 509, 4 Pac. 511; Smith v. Matthews, 81
Cal. 121, 22 Pac. 409; Luco v. De Toro, 91 Cal.405, 18 Pac. 866, 27 Pac. 1082; Fleishman v.
Woods, 135 Cal. 257, 67 Pac. 276; Kane v. Bloodgood, 7 Johns. Ch. N. Y. 90, 11 Am. Dec.
417; Lakin v. Sierra Buttes G. M. Co., 25 Fed. 344; Faucett v. Faucett, 85 Wis. 338, 55 N.
W. 405, 39 Am. St. Rep. 847; Pinkham v. Pinkham, 60 Neb 611, 83 N. W. 837; Warren v.
Adams, 19 Colo. 525, 36 Pac. 604; Snider v. Johnson, 25 Or. 331, 35 Pac. 846; Railway Co.
v. Hay, 119 Ill. 493, 10 N. E. 29; Edwards v. Beck, 57 Wash. 80, 106 Pac. 492; note, 12 Am.
Dec. 373.)
[4] The case resolves itself to the primal question as to whether the evidence is sufficient
to establish the alleged oral agreement and its full execution upon the part of the plaintiff. The
sufficiency of the evidence in this respect must be determined from the material testimony of
the following witnesses:
Mrs. Mary Sessions, a witness for the plaintiff, testified that she had known B. G. Clow,
deceased, for many years prior to his death; that in the year 1897 she was in Clow's
employment for about six months. Relative to a conversation had with the deceased, the
witness testified:
Why, he told me that he wanted the place to go to Grace. And he said that she lived with
them so long and helped to take care of them, and that she wanted to leave him when she
finished her education and he didn't want her to. He wanted her to stay there and stay with
them. He said that they were getting along in years and getting kind of old, and he wanted she
would stay with them, and that he would see that she was, I guess, provided for, and he said
that he had the place fixed so that duringif anything should happen to him it belonged to
his wife. Then, when she got through with it, it went to Grace; that it was hers.
37 Nev. 267, 275 (1914) Clow v. West
Grace; that it was hers. He said that he had papers made and fixed so that she would get the
place; that she would have no trouble at all in getting it. And he wanted she should have it,
and told me that, of a good many times.
Q. What, if anything else, did he say about Grace's going away at that time? A. Why, all
he said that she wanted to go away and make her own way, and he didn't want her to. He
wanted her to stay there and be with them.
Q. Well, state the substance of the last conversation which you had relative to the
disposition of that place on the hill. A. It was just he wanted she should have the place when
he and her aunt was through with it, and it was all fixed so she would get it without any
trouble at all.
Mrs. M. E. H. Riley, a witness for the plaintiff, testified that she had known B. G. Clow,
deceased, for more than twenty years and knew the property in controversy; that she had had
conversations with Clow relative to his agreement with his niece, Grace, respondent herein,
both before and after the death of Mrs. Clow. The witness testified relative to a conversation
with Clow, while the latter was at her home, as follows:
When he came to see, I said, How is Grace and the family?' He said, Nicely.' He says:
Grace thinks she will go away and do something for herself, but I cannot part with her. I
cannot spare her. She has did everything here for the past ten years, tended to my business
and writing, and what could I do without her? I have told Grace and agreed with her that, if
she would stay with us during our lifetime, this place on the hill should be hers. That, when
Mary came back from China, she would have some place to go and visit with Grace. And I
wish her to keep Bob, that he may attend to the bushes and things for her, and when I am
dead I wish her to settle with Bob.' I said, What will she do with that land on the hill?' Oh, it
will come into value some day. I have provided amply for Grace, and there is something for
her beside that ranch on the hill.' Further in the testimony of this witness appears the
following:
37 Nev. 267, 276 (1914) Clow v. West
Further in the testimony of this witness appears the following:
Q. Now, what else did he say, if anything? A. I said, Mr. Clow, you will have to make a
will to that effect.' He said, I have.'
Q. Say anything more about the will? A. He told me that J. B. Williams did his writing
and will, and that Mr. Frank Porter, formerly county clerk here, has signed that will, sir. * * *
Q. What was said about the time that agreement was entered into, if anything? A. He
said, All the rest has left me but Grace, and what can I do without her.'
Q. What was said about the time that agreement was entered into, if anything? A. Said:
Grace has lived with me all these long years, and what could I do without her? She tends to
my domestic affairs and my correspondence, and I can't spare Grace.'
Q. When did that take place? What time did that take place? A. It was about ten years
since. He says: If I died first Mrs. Clow will give that property to Grace. If she dies before
me, I intend that property for Grace. I have agreed with her and told her that she shall have it.'
* * *
Q. Yes. Now, can you remember the dates you had the second conversation with him?
The year? A. He talked to me considerably about it after Mrs. Clow died.
Q. Yes. Now, tell us what he said in that conversation that you had with him after Mrs.
Clow died? A. He talked to me of Grace there at the ranch, and I said, Is she with you?' Oh,
yes,' he said. She is to' I can't do without her; she must stay there. She tends to all my
domestic affairs and my writing, and everything I require of her, and I have agreed with her if
she will remain with me'then it was only Barneyas long as I live, she shall have the
place on the hill. It will be some place for Mary to come to when she comes from China, and
I know I owe Bob, and I wish her to settle with Bob, and keep him there. He can attend to
those shrubs for her.' I said: Mr. Clow, you will have to make a will to that effect, or there
will be trouble when you are dead.' He says: 'I have long ago. J. B.
37 Nev. 267, 277 (1914) Clow v. West
that effect, or there will be trouble when you are dead.' He says: I have long ago. J. B.
Williams did that for me, and Mr. Frank Porter, then county clerk here, signed that will.' He
said: I have provided handsomely for Grace beside that, beside the property on the hill, for I
wish her to pay Bob.'
Mrs. Martha Hayman testified that she knew B. G. Clow, deceased, in his lifetime.
Relative to a conversation had with B. G. Clow, deceased, during his lifetime at the latter's
home, the witness testified:
And we sat there and talked for a solid hour about his business and my business, because
I had always went to him for my counselor, what to do and how to do. And when I went, he
walked up to the house with me. He said he was feeble; he wasn't able to do much, and he
says, I don't know how much longer I am going to live.' And I said, You don't think you are
going to die?' And he said, I don't feel well.' And he says, You better get what you are going
to get and put out this fall,' he says, because the place belongs to Grace at my death.' And he
says, Grace might not be as good to you as I am,' and laughed. And I said What is the matter
with the others?' And he says, There is no others.' He says, We agreed to give this place to
Grace a long time ago, for to be hers and her own, and to do with it whatever she wants to,
after we are dead and gone.'
Q. Now, Mrs. Hayman, tell us all about that conversation you had with Barney Clow
relative to the disposition of that property on the hill and what was said in that conversation
relative to Grace Clow. A. Well, the time I spoke about his telling me, he told me that
evening about making the deed to Grace, and I said to him, Is it recorded?' And he says, No,
but I will attend to that, because,' he says, you know, madam, they can break a will but they
can't a deed.' He says, I agreed to give this place to Grace, this home place,' and he stamped
his cane down, This home place to Grace.' I says, What about the rest of them? He says,
They have got theirs and gone. This is for Grace for her own self and she can do whatever
she pleases with it after I am dead and gone.' 'But,' I said, 'Mr.
37 Nev. 267, 278 (1914) Clow v. West
do whatever she pleases with it after I am dead and gone.' But,' I said, Mr. Clow, deed the
place to Grace. Suppose she gets married and they would run you off the place.' He says, It is
not recorded, and,' he says, I am not afraid of Grace running me off of the place.'
Mrs. Jane Lakin, a witness for the plaintiff, testified, among other matters, to the
following:
Q. Now, I will ask you to state to the court and jury fully, as near as you can remember,
what that conversation was? A. Well, I came up to get some berries, and Mr. Clow was at
home, and he says, Mrs. Lakin, you will have to see Grace, and she ain't at home,' he says,
she is down town,' and he says, I gave the home up to her to make her living off of it, and I
got it fixed so it is her home now, and you will have to get the berries from Grace.' He says,
You can wait; I don't think it will be extra long when she comes back.' I says, I will wait a
little while,' but I turned around and got in the buggy and came back home. I didn't see her
afterward. That is what he told me; that he gave the home to Grace to make her living off of
it.
Miss Isabel Clark, a witness for the plaintiff, testified to an acquaintance with B. G. Clow,
deceased, in his lifetime; that she had visited his home at Reno; and that at one time she had a
conversation with Clow concerning which she testified as follows:
Well, the sum and substance of that conversation was Mr. Clow said that when he was
done with the property, everything was Grace's and he had got it arranged so that she would
have no trouble in holding it.
Mrs. J. W. Frazer, witness upon the part of plaintiff, testified that she had known that the
plaintiff, Grace Clow, resided with her uncle, B. G. Clow, deceased, from the year 1890 to the
time of the latter's death in 1902; that she visited the Clow ranch frequently between those
dates. Relative to conversations had with B. G. Clow in his lifetime, she testified as follows:
Well, the first conversation, those following were very similar, to the effect that Mr.
Clow, when he was through with the property there, the home place, the Clow ranch, or
whatever you might term it, when he and his wife was through with it, that property in
full, everything there, was to belong, or be exclusively, or whatever word you mind to
term it; it was to belong or be Miss Grace Clow's, his niece.
37 Nev. 267, 279 (1914) Clow v. West
or whatever you might term it, when he and his wife was through with it, that property in full,
everything there, was to belong, or be exclusively, or whatever word you mind to term it; it
was to belong or be Miss Grace Clow's, his niece.
Q. Mrs. Frazer, were you present at any time when an oral agreement was entered into
between Barney Clow in his lifetime and Grace Clow? A. I heard them have a conversation in
regard to it, on that line. Simply amounting to just what I have stated in regard to Grace
Clow's having that property. I heard Mr. Clow in conversation talking with her.
It appears from the testimony that the plaintiff went to reside with her uncle, B. G. Clow,
deceased, about the year 1878; that two or three sisters and a brother also went to reside with
him at that time; and that the plaintiff resided continuously with her uncle until his death in
1902. There is a great deal of testimony in the case that, from the year 1890 until the death of
B. G. Clow, the plaintiff looked after the household affairs of the deceased, assisted him in
his business affairs, attended, nursed him in times of illness, and in all such ways was
exceptionally devoted to his physical, personal, and business welfare. A daughter could not
have been more devoted to the interests and welfare of her father than the evidence shows
Grace Clow to have been to her uncle.
Counsel for appellant state the law to be:
In cases where it has been sought to obtain a decree against the heirs and representatives
of deceased parties, where the consideration named in the contract was in the nature of
personal services, and no possession had been given and no improvements made, and where
the services had been performed fully and completely by the plaintiff, that a decree in favor of
the plaintiff could be justified upon a showing that there had been such a change in the
conditions of the life of the plaintiff, by reason of the performance of the contract, as would
render it inequitable and unjust to refuse to specifically enforce the contract.
We think the evidence in this case brings the plaintiff within the rule asserted by counsel
for appellant.
37 Nev. 267, 280 (1914) Clow v. West
within the rule asserted by counsel for appellant. Besides, it can hardly be said that possession
was not given to the plaintiff. It cannot, we think, be said that there was no showing that
plaintiff had not so changed her conditions by reason of the contract as would render it
inequitable and unjust to refuse to specifically enforce the contract. Certainly when a young
woman, 19 years old, gives twelve of the best years of her young life in caring for, aiding, and
comforting an aged couple, not her own parents, she has made a very substantial change in
the usual conditions of a young woman.
As is said in Bryson v. McShane, 48 W. Va. 126, 130, 35 S. E. 848, 49 L. R. A. 527; 36
Cyc. 674:
There are some services that are incapable of valuation in money; as to these the law
permits individuals to make their own contracts. Old age is naturally repulsive. The hair
grows gray, the eyes sunken, the skin wrinkled and brown, the flesh shrunken, the figure bent,
the limbs weak and trembling, the will feeble, the tongue garrulous, the mouth toothless, the
mind wandering, the habits careless and filthy, accompanied oftentimes with loathsome
diseases needing all the care and attention of childhood, without its purity, loveliness, and
affection as a compensation. To meet this condition of life, a kind Providence has ordinarily
provided the ties of blood and marriage and parental, fraternal, and filial affection with their
reciprocal duties and obligations of mutual care and support. * * *
Plaintiff submitted to the jury the question, Did Grace Clow change her condition in life
beyond recall by remaining on said ranch? To which the jury returned their answer, No.
This particular finding was not embodied in the findings subsequently made by the court. Just
what was meant by the words beyond recall we do not fully comprehend, and we think the
question was misleading to the jury, for no such rule is required to support specific
performance in a case of this kind. In any event, it would be impossible to recall twelve of
the best years of a young woman's life spent in devotion to an aged couple, as is shown to
have been in this case.
37 Nev. 267, 281 (1914) Clow v. West
couple, as is shown to have been in this case. It cannot be said, we think, that there is not
sufficient evidence to support the findings and the judgment. (Van Duyne v. Vreeland, 12 N.
J. Eq. 142; Brison v. Brison, 90 Cal. 324, 27 Pac. 186; Kelley v. Devin, 65 Or. 211, 132 Pac.
535; Berg v. Moreau, supra; Best v. Gralapp, 69 Neb. 811, 96 N. W. 641, 99 N. W. 837, 5
Ann. Cas. 491, and authorities therein cited; Pomeroy, Specific Performance, sec. 114; 36
Cyc. 674.)
Judgment affirmed.
____________
37 Nev. 281, 281 (1914) Schuler v. Golden
[Nos. 1960 and 1961]
EUGENE SCHULER, Respondent, v. MAMIE L.
GOLDEN, Executrix of the Estate of Frank
Golden, Deceased, Appellant.
[142 Pac. 221]
1. ContractsBuilding ContractsRecission.
A building contractor, on a dispute arising over a partial payment by the owner, notified the owner
that he had forfeited the contract for failure to make the payment, and stated that the contractor might
decide to cancel the contract. The contractor remained in charge of the work until completion. A large
portion of the work had been subcontracted for before the dispute, but the subcontractors never released
the contractor. The owner posted a notice on the building that he was not responsible for any debts
made by the contractor, and declared that the contract was forfeited. The contractor posted a notice that
the owner had defaulted in payments and that the building was being completed by subcontractors, who
would hold the property for their claims. Letters passing between the parties contained misstatements
which did not relate to any material matter. The owner incurred expenses in the construction of the
building by exercising rights under the contract and in settling with subcontractors. Held, that the
contract was not rescinded, and the contractor could enforce his rights thereunder.
2. DamagesBuilding ContractsBreachExpenses.
A building contractor who is responsible under the contract for damages occasioned by the
construction of an extra story is liable to the owner for an amount he was compelled to pay a tenant for
damages occasioned by a defective roof put on by the contractor.
Appeal from the Second Judicial District Court, Washoe County; W. H. A. Pike, Judge.
Action by Eugene Schuler against Frank Golden, revived after the death of defendant
pending an appeal against Mamie L. Golden, executrix. From a judgment for plaintiff,
defendant appeals. Modified and affirmed.
L. A. Gibbons and Fred B. Hart, for appellant.
Cheney, Downer, Price & Hawkins, and Cole L. Harwood, for Respondent.
Per Curiam:
This is a suit to foreclose a mechanic's lien. From a judgment in favor of plaintiff and from
an order denying a motion for a new trial, defendant appeals. On the 21st day of November,
1906, an agreement in writing was entered into between the Northwestern Construction
Company, a corporation, and Frank Golden, since deceased, whereby the said construction
company agreed to construct for the said Golden a fourth-story addition to that certain
building in the city of Reno known as the Hotel Golden, and comprising what is known as the
Nevada Block, and to construct a four-story annex to such building in accordance with
certain plans and specifications furnished by Holesworth, Curtis & Co., the supervising
architects of the building. The agreed price for such work was $57,099, to be paid for in
seven installments. It was provided that the first installment of $7,500 should be paid when
the north wing is four stories high and ready for ceiling joist. The second installment of
$7,500 was to be paid when the brick work for the fourth-story addition and annex are
completed. The contract further provided that the said Golden could furnish to the said
construction company certain lumber to be used in the construction work, which was to be
paid for by the construction company according to a certain schedule of prices set out in the
contract. It was further provided that Golden could require alterations and additions during
the progress of the building. Included in the contract was the installation of a passenger
elevator, but it was also provided that Golden reserved the right, which he subsequently
exercised, to install the elevator himself, in which event the sum of $4,150 was to be
deducted from the original contract price for construction.
subsequently exercised, to install the elevator himself, in which event the sum of $4,150 was
to be deducted from the original contract price for construction.
The contract also contained the following provisions: The party of the first part agrees to
be responsible for all damages that may happen to the building now known as the Hotel
Golden, or Nevada Block, when the same shall be occasioned by the construction of the said
addition or of the said annex. That in case of the failure of the party of the first part to have
the said building fully completed and ready for occupancy the party of the second part, at the
time herein specified, to wit, on the 15th day of March, A. D. 1907, the said party of the first
part shall be held liable to the party of the second part in the penal sum of twenty-five (25)
dollars per day for each and every day after the said 15th day of March, A. D. 1907, and the
said sum of twenty-five (25) dollars per day is hereby fixed and agreed as full, fixed, and
liquidated damages for the detention of the delivery of the said building, unless such delay
shall be the result of unavoidable accidents or delays, or the acts of God.
The second payment mentioned in the contact came due on the 10th day of April, 1907.
Upon notice to Golden by the construction company that such payment was due, Golden
deposited in the Farmers' and Merchants' Bank the sum of $3,900.63, and presented to the
contractor a bill for lumber furnished in the amount of $3,599.37 as a full settlement of the
second payment. A dispute arose between Golden and the construction company relative to
the sufficiency of this proposed settlement of the second installment to meet the terms of the
contract. It was claimed by the construction company that the lumber account was to be
adjusted at the time of the final payment, and also that it had not received the full amount of
lumber mentioned in the bill. The construction company, through its agent and representative,
Eugene Schuler, notified Golden that he had forfeited his contract.
On the 7th day of May, 1907, the construction company sent a letter to Golden reading as
follows: We hereby confirm the action of our Mr. E. Schuler, declaring your contract
forfeited.
confirm the action of our Mr. E. Schuler, declaring your contract forfeited. You have
defaulted payment on the same, and we may decide to cancel the same and demand a full
settlement of you in the same at any time. We have notified all bondsmen that they are
released and asked them to withdraw. We hereby notify you that we will not be responsible
for any subcontractors' liens that may go on to the property.
On the 20th day of May, 1907, a letter was sent to Golden signed by the Northwestern
Construction Company, written by E. Schuler, and in part reading as follows: In pursuance
to letter from the company to you dated May 7, 1907, confirming my action declaring your
contract forfeited owing to you defaulting payment on the same in this letter they also advise
you they would not be responsible for subcontractors' liens, therefore herewith give you
partial list with approximate amounts due the subcontractors on the Golden Hotel Building,
and you will pay them as they become due and attested correct by us, thereby save the
expense and attorney's fees for liens from them or either of them as they become due. We
have notified them nothing more would be paid by us owing to can. of cont.
Then follows a list of names of subcontractors with amounts opposite, aggregating
$56,804. The letter then continued: You are hereby notified to call at our office, * * * check
up all matters and take care of them together with bal. due us; also look after insurance
hereafter on the said building. Yours truly, Northwestern Construction Co. P. S.E. Schuler
has subcontract of your building for $55,000.00
Thereafter, and on the 23d day of May, 1907, Golden posted on the building notices
reading as follows:
To whom it May Concern:
Notice is hereby given that the undersigned, Frank Golden, owner of these premises and
building, will not be responsible for any debts, charges, contracts, or other agreements entered
into by the Northwestern Construction Company, with reference to any work, labor,
materials, or supplies furnished for the alteration and construction of this building,
unless first approved by me.
Construction Company, with reference to any work, labor, materials, or supplies furnished
for the alteration and construction of this building, unless first approved by me.
Notice is further given that the said Northwestern Construction Company has abandoned
contract for the construction and alteration of this building, and the undersigned has declared
their contract forfeited.
Dated at Reno, Nevada, this 23rd day of May, A. D. 1907.
Over the above-posted notices by Golden, E. Schuler posted other notices reading as
follows:
Notice.
May 23, 1907.
______ having defaulted payment on his contract April 10, 1907, this building is being
completed by the subcontractors, who will hold the building and real estate for the full
amount of their claims and also the proprietors of these premises.
The building is in possession of the subcontractors, and trespassers are hereby notified to
keep out.
Subcontractors, by E. Schuler.
Several of these notices appear to have been posted, varying somewhat in language, one
reading as follows:
Notice.
May 23, 1907.
______ Having defaulted payment to the Northwestern Construction Co. April 10, 1907,
this building is being completed by the subcontractors, who will hold this property and the
owners for the full amount of their claims. See.'
Dated May 23, 1907.
By order of the Subcontractors.
Another notice read as follows:
Notice.
May 23, 1907.
______ having defaulted payment to the Northwestern Construction Co. April 10, 1907,
giving us right to cancel contract.
contract. The building is being completed by us and subcontractors; we will hold this property
and owners thereof for full amount of claims.
Northwestern Construction Co.,
and its Subcontractors.
ES
Where appears the blank line in the above copies, there was cut out a slit, and the notices
were so posted that the name Frank Golden, as it appeared in the notices posted by him,
showed through the slit. From time to time it appears that these notices were torn down by
unknown parties.
On the ___ day of May, 1907, the following letter was sent to Golden by certain of the
bondsmen on the bond of the construction company:
Frank Golden, Esq., Reno, Nevada.
Principal in Contract with Northwestern Construction.
County of Washoess.:
Take another notice.
You will again (once more) take notice.
That we and each of us have not been bound since April 10, 1907, upon bond of
Northwestern Construction Co., for the rebuilding of what is known as the Hotel Golden, for
the reason that you (Frank Golden) have broken and forfeited your contract with the
Northwestern Construction Co. in many ways and by defaulting payment on the same the
10th day of April, 1907.
Now, therefore, you are hereby notified that the building is being completed by the
subcontractors' as fast as it can be done, considering delay caused by you which has by this
time been over five months, and we shall look to you to straighten out such matters so there
may be no further unnecessary delay, and you are further notified to pay all subcontractors'
claims when they are due and attested correct by E. Schuler, pres. of the Northwestern
Construction Company, and that we will not be responsible for any claims and subcontractors'
liens.
And you are further notified that the said building operations are delayed by you and
you only entirely at your own risk and peril and that we will not be responsible for any
matters connected therewith.
operations are delayed by you and you only entirely at your own risk and peril and that we
will not be responsible for any matters connected therewith.
Dated at Reno, this ___ day of May, A. D. 1907.
Eugene Schuler
A. F. Neidt
A. Spencer.
On the 17th day of September, 1907, a communication was sent by Golden, through his
attorney, to the Northwestern Construction Company and its bondsmen informing them that
Golden would hold them responsible on the bond for all delay in the completion of the
building after the 15th day of March, 1907, as specified in the building contract. To this
communication a reply was sent by the construction company, to which the names of the
bondsmen, were added, in part reading:
You,' and each of you, are once more notified that Frank Golden defaulted payments and
broke his contract in divers other ways with the Northwestern Construction and others in
many ways, and particularly in not making his payments expressly provided for in the
contract thereby forfeiting his rights under the same and the Co., the Northwestern
Construction Co., were at liberty to cancel the same at any time had they desired to do so, of
which fact you have been advised before; but instead they are completing your building as
fast as it can be done, and if you will do your part the building will be finished some time
soon.
On the 23d or 24th day of May, 1907, Golden purchased a number of claims of
subcontractors against the construction company totaling the sum of $4,100.70, and had
assignments of such claims made to William Woodburn, Jr., and caused a suit against the
construction company to be instituted by said Woodburn for the amount of such assigned
claims, and in such suit attached money belonging to the construction company on deposit in
certain banks in Reno. During the trial it was stipulated that Golden was the actual owner of
these assigned claims, and that, in the event the court rendered judgment in favor of the
plaintiff, Golden should have credit for the amount involved in the Woodburn suit.
and that, in the event the court rendered judgment in favor of the plaintiff, Golden should
have credit for the amount involved in the Woodburn suit. During the trial Woodburn
assigned the claims to Golden, the suit was dismissed, and the amount credited in the
judgment entered as a part payment on the contract. Prior to the trial Golden had purchased a
number of other similar claims or paid subcontractors in whole or in part, and the amount of
such payments was likewise credited on the amount found to be due on the contract.
Numerous letters and writings passed between Schuler or the construction company and
Golden, other than those above mentioned, but they do not vary the situation as disclosed by
those quoted, and need not be referred to.
Notwithstanding the various letters and communications between the parties, and the
notices posted on the building, the construction company remained in possession of the
property and completed the building.
With the exception of one or two extras amounting in excess of $1,000, contracted for
after April 10 and before May 23, 1907, the construction company refused to contract for
extra work, but required or permitted Golden to deal directly with subcontractors for the
same. The building was finally accepted as completed in accordance with the contract by the
supervising architects on January 21, 1908, and a written acknowledgment of the same issued
to the construction company. Subsequently, and within sixty days thereafter, the construction
company filed a lien upon the property to secure the balance claimed to be due by virtue of
the contract. Subsequently, and prior to suit to foreclose the lien, the Northwestern
Construction Company assigned their claims of lien to the respondent, Eugene Schuler.
Subsequent to the appeal in this case the defendant and appellant, Frank Golden, died, and
Mamie L. Golden, the duly appointed executrix under his last will, was substituted as
defendant and appellant.
It is the contention of counsel for appellant that the contract was terminated by mutual
act and consent of the parties on May 23, 1907, and that the lien sued upon and based on
the contract of November 21, 1906, was not filed in time and was void.
contract was terminated by mutual act and consent of the parties on May 23, 1907, and that
the lien sued upon and based on the contract of November 21, 1906, was not filed in time and
was void.
[1] The main question in this case turns on whether the contract was terminated by acts of
the parties following the dispute over the payment of the second installment on the contract
due April 10, 1907. The contention of counsel for appellant in this respect cannot, we think,
be sustained. The construction company, through E. Schuler, notified Golden that he had
forfeited his contract by reason of his failure to make the second payment according to the
letter of the contract, but Schuler did not notify Golden that the company would not carry out
the contract upon their part. Subsequently, by the letter of date May 7, the company notified
Golden that it confirmed the action of Schuler declaring your contract forfeited, and stated
that the company may decide to cancel the same. The record does not disclose anything
warranting the conclusion that the construction company subsequently did decide to cancel
the contract. It remained in charge of the building to the end and completed the same. True, a
very great portion of the work on the building had been subcontracted before that time, but
the subcontractors never released the original contractor. The carpentry work was not
subcontracted, and this was completed directly by the construction company. Subsequent to
the dispute over the second payment, and up to December, 1907, the testimony shows that the
construction company had paid out for labor $3,363.25, of which amount $900.78 was for
carpenter's work. Some payments were also made by the construction company to
subcontractors subsequent to that time.
The notice posted by Golden May 23, and the counter notices posted by the construction
company of the same date, quoted supra, do not amount to a mutual rescission of the
contract. The construction company had performed no act up to that time authorizing Golden
to "declare their contract forfeited."
declare their contract forfeited. The notices posted by Schuler purporting to be signed only
by the subcontractors could not be binding on the original contractors. The one notice written
and posted by Schuler and signed Northwestern Construction Co. and Its Subcontractors,
ES, stated the building is being completed by us and subcontractors.
Numerous communications passed between the construction company and Schuler, its
representative, upon the one hand, and Golden and his attorneys, upon the other. Some of the
letters written, or caused to be written, by Schuler contained statements which Schuler
admitted upon the trial were not the fact. For example, he testified the company did not notify
the subcontractors it would not pay them as stated in the letter of May 20, quoted supra. Such
statements, he testified, were intended as bluff to induce Golden to make payments. None
of these misstatements relate to any matter material. There may have been, as is claimed by
counsel for respondent, a good deal of bluff upon both sides. The fact remains, however,
that the construction company never claimed a rescission of the contract, but only a right to
assert a rescission by reason of the alleged violation of the contract by Golden, an asserted
right which it never acted upon. Upon the contrary, as before stated, the construction
company remained in possession of the building and completed the same, and it was accepted
by the supervising architects.
It is contended by counsel for appellant that the contract should be considered rescinded,
for the reason that Golden altered his legal position and assumed and ultimately paid
obligations amounting to the sum of $40,000, which he was under no obligation to pay save
for his action predicated upon and caused by the prior acts of the plaintiff. This contention,
we think, is without merit. The amount stated includes the elevator contract, which Golden
had the right to withdraw from the construction company and install himself, and some other
amounts which he contracts for independently. In settling with a number of the
subcontractors he merely purchased their claims against the construction company, as in
the case of the Woodburn assignments.
settling with a number of the subcontractors he merely purchased their claims against the
construction company, as in the case of the Woodburn assignments. Where he guaranteed
payment to certain large subcontractors, the latter did not release the construction company
from liability. In the meantime he was not meeting his payments as provided in his contract
with the construction company, so that they could take care of legitimate claims against
themselves.
The contention that the contract was rescinded is without substantial merit. (6 Cyc. 24.)
Delays. From March 15, 1907, when the contract was to be completed, until January 21,
1908, when the building was finally accepted, there was a delay of ten months and six days.
The plaintiff, at the trial, undertook to account for this delay because of causes specified in
the contract releasing the construction company from the agreed liquidated damages for
delay. No delay is claimed by reason of the default in payments. Schuler testified that the
basement wall which Golden was to construct and which was not part of the contract was not
completed until in February, 1907, but just how much delay is claimed on this account does
not appear. The evidence does not disclose when this wall should have been completed, and
is conflicting as to whether any delay chargeable to Golden was occasioned thereby. A
month's delay is attributable to the weather; a month because of failure to get lumber in time;
a month because of changes in the character of roofing; three days because of certain
plumbing alterations; two weeks (about) because of putting in gas pipes, not specifically
mentioned in the contract; two weeks because of changes in the electric wiring; five days on
account of Golden's tenant in the building; a month and a half on account of installing a boiler
for the hearing apparatus. In reference to delays caused by other changes no definite time is
given or approximated; more time than one would think is the answer to this question. A
delay of a month and ten days is claimed for delay in the final inspection of the supervising
architect.
of the supervising architect. Why, with reasonable diligence, much of this latter delay could
not have been avoided does not appear. The proofs in excuse for so much delay are in many
respects unsatisfactory. For instance, while extra time was consumed in installing the boiler,
it does not appear that other work was delayed on this account. Delays occasioned by weather
conditions and lack of materials, except under extraordinary conditions, are not usually
regarded as excuses for delays.
The lower court found the delays to be excusable, but we are of opinion that sixty days at
least are not shown to have been excusable delays.
[2] Damage to Golden's Tenant. At the time of the construction of the annex and fourth
story to the Golden Hotel building one Al North was tenant of the hotel under a lease from
Golden. North had a claim for damages amounting to $1,073 because of injury to rooms in
the hotel, carpets, etc., occasioned by leaks in the roof. This amount was paid by Golden
pursuant to a letter, of date January 18, 1908, written by the construction company to Golden
containing an itemized statement of the damages sustained by North, requesting payment by
Golden. The letter also said: Amount paid can be adjusted at final settlement for the
building.
The proofs showed that the company put on a defective roof, which had to be repaired
before the building was accepted. Schuler in his testimony claimed that the damage was due
to a storm which occurred while there was delay in putting on the roofing due to a change in
the character of roofing made at Golden's request.
In the findings of the court below is the statement of fact: He [meaning Frank Golden]
also paid Al North for damages caused to furniture and for other items properly chargeable to
said construction company the sum of $93.
How the court arrived at this charge of $93 we are unable to determine from the record,
unless the court made a mistake in the figures. One item of the North claim, amounting to
$453, occurred between August 3, 1907, and January 1, 190S, and could not be attributed
to the change in roofing.
1907, and January 1, 1908, and could not be attributed to the change in roofing. We think
Golden entitled to credit for the entire North claim.
Other items in the settlement made by the court are not questioned.
The judgment should be reduced by deducting therefrom the sum of $2,690, to wit, from
$18,535.54 to $15,845.54, and there should be included therein the provision that of such
amount the sum of $988.95, with its proportionate amount of accrued interest, be paid to the
Nevada Planning Mills Company as mentioned in the findings of the court.
As so modified, the judgment is affirmed.
Order on Motion to Modify Judgment
This cause coming on to be heard on the motion of the respondent to correct and make
certain the judgment therein, and the same having been considered by the court, and good
cause appearing therefor:
It is ordered and decreed that the judgment of the district court in this action be corrected
and modified as follows:
That Mamie L. Golden, as executrix of the estate of Frank Golden, deceased, be
substituted in the place of said Frank Golden as defendant and respondent in this action.
That from the sum of $15,312.69, found due by the district court from defendant to the
plaintiff, there be deducted as found by this court the sum of $2,480, leaving the sum of
$12,832.69 as the amount due on the contract. To this there should be added interest at 7 per
cent from February 21, 1908, the date of filing the lien, to February 8, 1910, the date of the
judgment, which amounts to $1,764.14, making the principal and interest to date of judgment
$14,596.83. To this should be added attorneys' fees, $1,000, costs of filing lien, $8.45, costs
of suit, $107.80, making a total of $15,713.08, and that $13,948.94 of the judgment should
bear interest at 7 per cent per annum from February 8, 1910, until paid.
It is further ordered that of such amount the sum of $988.95, with interest at 7 per cent
from February 21, 1908, be paid to the Nevada Planing Mills Company.
The district court is directed to modify its judgment and decree in this action accordingly,
and, as so modified, said judgment is affirmed, and the remittitur to issue accordingly.
Per Curiam:
Petition denied.
____________
37 Nev. 294, 294 (1914) Flodin v. Verdi Lumber Co.
[No. 2110]
JOHN FLODIN, Respondent, v. VERDI LUMBER
[142 Pac. 531]
1. NegligenceDefective InstrumentalityInjury to EmployeeIndependent Contractor.
In an action for injuries from being struck by lumber thrown from a car by a lurch due to a defect in
the track belonging to defendant and used by plaintiff's employer, that plaintiff was in the employ of a
person sustaining the relation of an independent contractor to defendant constituted no defense.
2. NegligenceActionsEvidenceAdmissibility.
In an employee's action against one to whom the employer sustained the relation of an independent
contractor, evidence that the defective track causing plaintiff's injury was used by defendant was not
objectionable as leading the jury to believe that such use placed on defendant the duty to keep the track in
a safe condition, where defendant was liable for furnishing a defective track for the contractor's use, even
though it had not used the track at the same time.
3. NegligenceActionsEvidenceAdmissibility.
Where the evidence in an employee's action for injuries showed that the injury resulted from his being
struck by lumber thrown from a car due to a defective track, evidence that lumber had slipped from the
car because of insecure loading at other times was properly excluded.
4. NegligenceDefective InstrumentalityInjury to EmployeeIndependent Contractor.
Where a lumber company owning a defective railroad track furnishes same to an independent
contractor to enable him to carry out his contract, and the defective condition is, or, in the exercise of
ordinary care, might have been known to the company, and where an employee of
the independent contractor is injured, as a proximate result of such defect, while he
is in the discharge of his duty and in the exercise of ordinary care for his own safety,
the company is liable for such injury.
the exercise of ordinary care, might have been known to the company, and where an employee of the
independent contractor is injured, as a proximate result of such defect, while he is in the discharge of his
duty and in the exercise of ordinary care for his own safety, the company is liable for such injury.
Appeal from the Second Judicial District Court, Washoe County; Cole L. Harwood, Judge.
Action by John Flodin against the Verdi Lumber Company, a corporation. From judgment
for plaintiff, defendant appeals. Affirmed.
The defendant (appellant) is, and during the year 1910 was, engaged at Verdi in an
extensive general business of sawing and manufacturing lumber and forest products. In April
of that year one Eric Erickson entered into a written contract to haul the lumber sawed by
appellant in its mills at Verdi from its trimmer to its yards, and there to pile the lumber, at the
price of 80 cents per thousand feet, without help or assistance furnished by, or other expense
to, the appellant. The contract did not mention cars, track, or appliances or provide that the
defendant should furnish Erickson with any instrumentalities for moving the lumber. It was
taken from the trimmer and loaded in the mill and hauled on the cars and track of appellant to
the yard, where it was piled. The track was in place apparently for the purpose of hauling the
lumber; and, although it was not mentioned in the written agreement, it may be implied that it
was to be furnished by appellant, and that it was to be used by Erickson in moving the lumber
for appellant's benefit, instead of a team or other track to be constructed by him.
While plaintiff was in the employment of Erickson and partners, and engaged in driving a
horse drawing a car of lumber from the trimmer to the yard, over the track, and while he was
standing on a space about one foot wide at the side of the lumber, and holding the lines
with one hand and the brake stick with the other, the car went down on one side, the load
of lumber slipped from the car, crushed his right leg, and bruised his back and left arm.
and while he was standing on a space about one foot wide at the side of the lumber, and
holding the lines with one hand and the brake stick with the other, the car went down on one
side, the load of lumber slipped from the car, crushed his right leg, and bruised his back and
left arm.
In the complaint it is alleged that plaintiff was otherwise injured, wounded and cut, and
became sick, sore, lame, disordered, and will so remain during the rest of his life, and that he
expended the sum of $690 for medical attention, hospital accommodations, and nursing in
attempting to cure himself of the injuries. He asked for damages in the sum of $15,000. By
the verdict the jury allowed $3,000.
There was testimony that the lumber was 16 feet long, the car about 6 feet in length and 5
feet wide, and that the load of lumber was piled about 5 feet wide and extended over the ends
of the car. The plaintiff testified:
A. I took that car at the mill and pushed it onto that track where the car it is supposed to
go, and about three blocks from that mill, where the ties were torn and broken there. I didn't
notice it; the rail sank down. I did not have time to get away, and I standing there, and no
chance to get away whatever. * * * I hit the spot; I didn't see anything; it was dark. I went
down, and I tried to get away. I didn't have time; there was no chance to get away.
Q. Explain, as you drove along, what occurred to the car and the load of lumber. A. It
sunk down to one side, that side I was standing on.
[1] It is claimed that the appellant is not liable because plaintiff was not in the employment
of appellant, but was in the exclusive employment of an independent contractor, and that
there was an assumption of risk and contributory negligence on his part. We conclude that,
under the circumstances indicated, these contentions cannot avail the appellant. The instances
in which the owners of property become liable to parties injured who have no contractual
relations are very numerous.
no contractual relations are very numerous. Liability for accidents resulting from defective
sidewalks or excavations carelessly left open or unguarded are illustrations. If the plaintiff
had been a mere trespasser, or had been working for some one using the track who had no
business relation with the appellant, different questions would arise. It may assumed that the
jury properly concluded that under the conditions and custom there it was intended that the
company should furnish the track and that the use of it by the plaintiff as an employee of
Erickson was with the consent and for the business and benefit of the appellant. We regard
the case on principle as one coming under the ordinary rule that, where the owner furnishes a
defective appliance, he becomes liable for the damages resulting to an employee of the
contractor.
[2] This answers the objection of the appellant that the court erred in allowing testimony
that appellant used the track when respondent was injured for the purpose of transporting its
dry lumber from its yard to its manufacturing mills and to the Southern Pacific tracks. It is
said that the jury may have inferred from the fact that the appellant was using its own track
during the life of Erickson's contract it became its duty to keep the track in a safe condition
for the use of Erickson and his employees. This is immaterial, as the law makes the appellant
liable for furnishing a defective track for use in the hauling of its lumber by Erickson.
[3] It appearing that the overturning of the lumber and the injury resulted from the
defective track, the testimony regarding the lumber slipping from the car because of insecure
loading at other times was properly excluded.
[4] Exception was taken to the giving of the following and other instructions:
Plaintiff's Instruction No. 1. The jury are instructed that the mere fact alone that the
plaintiff was in the employ of one sustaining the relation of an independent contractor to the
defendant is not in itself a defense to the cause of action stated in the complaint.
contractor to the defendant is not in itself a defense to the cause of action stated in the
complaint.
Plaintiff's Instruction No. 2. The jury are instructed that if they find from the evidence
that the defendant furnished to the independent contractor an instrumentality, such as the
railroad track in this case, for the use of the independent contractor in carrying out the
provisions of the contract upon his part, and if they further find from the evidence that such
instrumentality so furnished was in a defective and dangerous condition, and if the jury
further find from the evidence that the defendant knew, or, by the exercise of ordinary care,
might have known, of the existence of such defect or danger, and if the jury further find from
the evidence that by reason of such defective or dangerous condition, as the approximate
cause, an employee of the independent contractor, while in the discharge of his duty and
while exercising ordinary care and caution for his own safety, is injured, then the jury are
instructed that the defendant is liable to such employee for the damages caused by such
injury.
These instructions state the law. The court properly refused the instructions requested by
appellant, based upon the theory that the appellant was not liable for furnishing an unsafe
appliance. We find no error in the record.
The judgment is affirmed.
Per Curiam:
Petition denied.
____________
37 Nev. 299, 299 (1914) Scott v. Day-Bristol Mining Co.
[No. 2126]
A. L. SCOTT, Respondent, v. DAY-BRISTOL CONSOLIDATED MINING COMPANY (A
[142 Pac. 625]
1. Constitutional LawDue Process of LawActionsRight to Defend.
The legislature is without power to take from an owner or claimant of property the right to defend an
action by which it is sought to obtain a decree adjudging defendant to be without title to or right to the
property so claimed.
2. EstoppelGroundsJudicial Proceedings.
Rev. Laws, sec. 1350, provides that every foreign corporation having failed to comply with the
preceding sections prescribing conditions on which it might do business within the state shall not be
allowed to commence or defend any action in any court in the state until it shall have fully complied with
the act. Held that, where plaintiff instituted suit against a foreign corporation which had not so complied,
seeking a decree depriving defendant of title to a mining claim which it claimed to own within the state,
plaintiff was estopped to deny defendant's right to make a defense and have the answer of defendant
stricken and judgment rendered by default.
Appeal from the Fourth Judicial District Court, Lincoln County; E. J. L. Taber, Judge.
Action by A. L. Scott against the Day-Bristol Mining Company. Judgment for plaintiff,
and defendant appeals. Reversed and remanded.
McNamee & McNamee, for Appellant.
Chas. Lee Horsey and William E. Orr, for Respondent.
Respondent brought an action in the Fourth judicial district court in and for the county of
Lincoln against appellant to quiet title to a certain mining claim in the Bristol mining district,
Lincoln County, known as the Twenty-Eight-Thirty Lode, and to perpetually enjoin
appellant from asserting any claim or title whatever in or to said property adverse to the
respondent or in any manner interfering with respondent's possession thereof.
The complaint alleges that the defendant, appellant herein, is a corporation duly
organized and existing under and by virtue of the laws of the State of Maine; that the
plaintiff, respondent herein, on the 9th day of August, 1911, made a valid relocation of a
certain claim in the Bristol mining district, county of Lincoln, which was then open for
relocation, designating it as the "Twenty-Eight-Thirty Lode," and thereafter performed
the necessary acts to perfect a valid relocation of a mining claim; that said claim was
theretofore known as the "Inman Lode," and as such was owned and claimed by the
defendant corporation; that the assessment work attempted to be performed for said
Inman lode for the year 1911 by said defendant corporation was actually performed on a
patented claim owned by a third party, and was so performed outside the boundaries of
said Inman lode, and that said work had no direct tendency or any tendency whatsoever
to benefit or develop said Inman lode of said defendant corporation, either directly or at
all; that said defendant corporation claims and asserts an interest in and to the mining
ground embraced within said "Twenty-Eight-Thirty Lode," adverse to plaintiff; that said
claim thereto is without right, and said defendant corporation has no estate, right, title,
claim, or interest whatever in said property or any part thereof.
herein, is a corporation duly organized and existing under and by virtue of the laws of the
State of Maine; that the plaintiff, respondent herein, on the 9th day of August, 1911, made a
valid relocation of a certain claim in the Bristol mining district, county of Lincoln, which was
then open for relocation, designating it as the Twenty-Eight-Thirty Lode, and thereafter
performed the necessary acts to perfect a valid relocation of a mining claim; that said claim
was theretofore known as the Inman Lode, and as such was owned and claimed by the
defendant corporation; that the assessment work attempted to be performed for said Inman
lode for the year 1911 by said defendant corporation was actually performed on a patented
claim owned by a third party, and was so performed outside the boundaries of said Inman
lode, and that said work had no direct tendency or any tendency whatsoever to benefit or
develop said Inman lode of said defendant corporation, either directly or at all; that said
defendant corporation claims and asserts an interest in and to the mining ground embraced
within said Twenty-Eight-Thirty Lode, adverse to plaintiff; that said claim thereto is
without right, and said defendant corporation has no estate, right, title, claim, or interest
whatever in said property or any part thereof.
The complaint was filed June 13, 1913, and on the same day summons was duly issued
thereon. On the 17th day of June following the sheriff of Lincoln County made due return of
service of said summons as made on the 14th day of June, 1913, by delivering to George E.
Bent, general manager of the defendant corporation, personally, in the county of Lincoln, a
true copy of said summons attached to a copy of the complaint in said action. On the 21st day
of June following the defendant corporation appeared in the action by its attorneys, F. R.
McNamee and Leo A. McNamee, by filing a demurrer to the complaint. Thereafter, on the
20th day of January, 1914, as appears from the minutes of the court of that day, the case came
on regularly for disposing of the demurrer.
Counsel for the plaintiff interposed a motion to strike the said demurrer from the files upon
the ground that the defendant corporation did, after the adoption of the act of the legislature,
March 20, 1907 (Rev. Laws, secs. 1348-1350), and before filing the said demurrer, enter this
state for the purpose of doing business herein, and at the time of filing said demurrer, and for
a long time prior thereto, was engaged in doing business in this state; that said corporation,
before commencing or doing any business in this state, did not file in the office of the
secretary of state of the State of Nevada a certified copy of its articles of incorporation or
other instrument of authority by which it was created, and had not filed in the office of the
county clerk of the county of Lincoln, the county where its principal place of business is
located, and had not in any respect complied with the provisions of said act. Counsel for the
defendant corporation admitted the grounds upon which the motion was based to be true in
fact. The motion was taken under advisement, and thereafter, on the 28th day of January,
1914, the court, in pursuance of the motion, ordered the demurrer stricken from the files.
Thereafter, and on the same day, on request of counsel for the plaintiff, the default of the
defendant for failure to appear and answer plaintiff's complaint within the time allowed for
answering was entered by the clerk. Thereafter, and on the 30th day of January, 1914, the
court heard evidence upon the part of the plaintiff and entered a decree, reciting the default of
the defendant, in accordance with the prayer of the complaint. From the judgment the
defendant has appealed.
In the reply brief of counsel for the appellant the statement is made that a few days prior to
filing such brief the defendant corporation filed a copy of its articles of incorporation with the
secretary of state and paid to that officer the statutory fee of one thousand dollars upon its
capitalization of $10,000,000. The statement in the brief as to the recent qualification of the
defendant to transact business in this state is not controverted.
No question has been raised in the briefs as to the right of defendant to be heard in this court
upon the appeal, nor is any question raised as to whether the legal questions discussed are
properly presented in the record. We shall therefor dispose of the main question of law
presented for determination upon the assumption that it is properly before us for
consideration.
The question discussed in the briefs is a very important one, and we find little, if any,
direct authority to aid us in its determination. The legislature of 1907 passed an act entitled:
An act to require foreign corporations to qualify before carrying on business in this state,
regulating and prescribing the manner thereof, and other matters pertaining thereto, repealing
all other acts in conflict therewith.
Section 1 provides: Every corporation organized under the laws of another state, * * *
which shall hereafter enter this state for the purpose of doing business therein, must, before
commencing or doing any business in this state, file in the office of the secretary of state of
the State of Nevada a certified copy of said articles of incorporation * * * or other instrument
of authority by which it was created, and a certified copy thereof, duly certified by the
secretary of state, * * * in the office of the county clerk of the county where its principal place
of business in this state is located.
Section 2 of the act prescribes the same fees to be paid as required in the case of domestic
corporations.
Section 3 provides: Every such corporation which shall fail or neglect to comply with the
provisions of this act * * * shall not be allowed to commence, maintain, or defend any action
or proceeding in any court of this state, until it shall have fully complied with the provisions
of this act. * * * (Rev. Laws, secs. 1348-1350.)
As a general proposition, subject possibly to some exceptions in cases of corporations
engaged in interstate commerce, it may be conceded that a state, through its legislature, may
prescribe conditions upon which it will admit foreign corporations to come into it and
transact business.
legislature, may prescribe conditions upon which it will admit foreign corporations to come
into it and transact business. Statutes imposing penalties upon such corporations for
transacting business within a state or denying them the right to institute or maintain actions in
the courts of the state until they have compiled with the law have usually been sustained. In
enforcing such statutes, however, the courts have been careful not to limit the rights of such
corporations beyond the plain import of the language used in the statute. (American Tel. Co.
v. Superior Court, 153 Cal. 533, 96 Pac. 15.)
The statutes of many of the states contain provisions denying such delinquent corporations
the right to maintain actions in the courts until there has been a compliance with the law, and
there are numerous decisions supporting such provisions of the statute. A very few states, as
our state has done, have denied to such corporations the right of defense to an action.
It is contended by counsel for appellant that a provision of a statute denying to a defendant,
even though it be a delinquent foreign corporation, the right of defense is a denial to a citizen
of another state of due process of law, and of the equal protection of the law, and hence that
such a provision is unconstitutional.
We think it unnecessary to consider this constitutional question in order to determine this
case. We think the court ought not to have entertained the motion to strike, for the reason that
when the plaintiff sued the defendant in its corporate capacity, sought and obtained the
process of the court to compel it to appear and answer, which it did in pursuance of such
process, the plaintiff waived the right to question its capacity to defend.
[1] We hold, without entering into an extended discussion of the question, that it is
elementary that the legislature is without power to take from an owner or claimant of property
the right to defend an action where it is sought, as in this case, to obtain a decree adjudging
defendant to be without title to or right in property claimed by it as owner.
claimed by it as owner. See McVeigh v. U. S., 11 Wall. 259, 20 L. Ed. 80; Henry v. Carson,
96 Ind. 423.
[2] It may be, in the case of a delinquent foreign corporation owning or claiming to own
property, that a plaintiff, seeking a judgment affecting the right in or title to such property,
may allege in the complaint the incapacity of such corporation to defend, and bring the action
against persons deemed to hold the property as trustees or against a receiver appointed for the
purpose of the action. To permit a plaintiff, however, to sue a corporation, bring it into court
under process commanding it to answer, then to permit such plaintiff to strike the answer and
take judgment by default, cannot be tolerated, especially in a case where the plaintiff is
invoking the equitable powers of a court to quiet an alleged title to property. To seek
equitable relief in a court and then question the right of the other party to be heard, does not
comport with the principles of equity.
It has been held in cases brought by foreign corporations, which had not complied with
statutory provisions and were, for that reason, incapacitated from maintaining an action, that
the defendant in the action must plead the incapacity of the plaintiff to sue, and that defendant
could not, after the case had gone to trial, raise the question for the first time, but would be
deemed to have waived the same. (Bernheim Co. v. Elmore, 12 Cal. App. 85, 106 Pac. 720;
Cal. S. & L. Soc. v. Harris, 111 Cal. 133, 43 Pac. 525; Leonard v. Am. S. & W. Co., 73 Kan.
79, 84 Pac. 553, 9 Ann. Cas. 491; White S. M. Co. v. Peterson, 23 Okl. 361, 100 Pac. 513;
Lougee v. Wilson, 24 Colo. App. 70, 131 Pac. 777; 19 Cyc. 1321.) See, also, Rowe v. Stevens,
25 Idaho, 237, 137 Pac. 159.
We think it a proper rule to apply in this case that, the plaintiff having sued the defendant
as a corporation, praying for a judgment against it eo nomine, he is deemed to have waived
any question of its capacity to defend, and that such waiver continues as long as the plaintiff
seeks such judgment directly against such a party defendant.
It follows that the court below erred in striking the demurrer.
The order striking the demurrer and the judgment are reversed, and the cause remanded.
____________
37 Nev. 305, 305 (1914) Esden v. May
[No. 1887]
AMANDA ESDEN, Appellant, v. JAMES MAY, JOHN NOLAN, and GOLDEN HOTEL
COMPANY (a Corporation), Respondent.
[142 Pac. 530]
1. JudgmentDefaultEntryAuthority of Clerk.
Where a married woman sued to recover property held by her husband in trust for her from persons
who had obtained it from her husband at a gambling game while he was intoxicated, the action being one
on implied contract and not for a tort or for an uncertain sum or for relief requiring the exercise of
judicial discretion, a default judgment was properly entered by the clerk.
On rehearing. Denied.
[For former opinion, see 36 Nev. 613.]
James Glynn, for Appellant.
Boyd & Salisbury, for Respondents.
On Rehearing
The facts and the original opinion in this case are reported in 36 Nev. 613, 135 Pac. 1185.
Upon further consideration given the questions involved since the argument upon
rehearing, we feel constrained to adhere to the conclusions reached in the original opinion. It
is entirely clear that if the demand was one upon contract, or for damages, the clerk was
empowered to enter the default and judgment, and we are unable to say wherein the demand
is different in principle, so far as the power of the clerk is concerned, from the one in an
ordinary action upon an implied contract. The action was not in tort, nor for an uncertain
amount, nor for any relief which required the court to act judicially in rendering
judgment.
37 Nev. 305, 306 (1914) Esden v. May
was not in tort, nor for an uncertain amount, nor for any relief which required the court to act
judicially in rendering judgment. As under the law the money belonged to the plaintiff, the
obligation on the part of the defendants to pay was in the nature of an implied contract. There
was no need for the district judge to exercise his judicial discretion in determining the amount
to be recovered, which was as certain, and for which the clerk could ministerially enter the
judgment as readily, as in any ordinary action on contract or for damages.
The order of district court from which the appeal was taken will stand reversed.
____________
37 Nev. 306, 306 (1914) United States Fidelity & Guaranty Co. v. Marks
[No. 2078]
UNITED STATES FIDELITY AND GUARANTY COMPANY (a Corporation), Appellant,
v. E. MARKS, Et Al., Respondents.
[142 Pac. 524]
1. StatutesConstruction of Penal Statutes.
Penalties or forfeitures in addition to those stated in a statute should not be implied or imposed by the
court.
2. CorporationsForeign CorporationsForfeituresViolation of Domestic Regulations.
Where a Maryland fidelity and guaranty company has secured a license to do business in Nevada, its
right to foreclose a mortgage, taken to indemnify it for loss incurred as surety on an appeal bond, will not
be denied because such corporation has failed to pay a gross earnings tax imposed on foreign insurance
companies doing business in Maryland, and which tax might be enforced in Nevada under general
corporation law (Stats. 1903, c. 88), sec. 106, providing that foreign corporations doing business in the
state shall suffer such penalties and taxes as may be imposed by the laws of the foreign state on
corporations of Nevada; the Maryland statutes containing no provision that the failure to pay the tax shall
result in any forfeiture of the corporation's property rights, the only penalty impose being a fine.
3. MortgagesPurchasersAcquisition of Tax Title.
A purchaser of mortgaged land from the mortgagor cannot acquire title as against the mortgagee by
failing to pay the taxes and bidding in the property at the resulting tax sale.
4. Constitution LawDetermination of Constitutional Questions.
The supreme court will not determine constitutional questions which are not essential to a decision of the
case.
Suit by the United States Fidelity and Guaranty Company against E. Marks and others.
Decree for defendants, and plaintiff appeals. Reversed and remanded.
H. R. Cooke, for Appellant.
P. E. Keeler, for Respondents.
The appellant, a surety company organized under the laws of Maryland, has transacted
business in the State of Nevada as a surety on bonds and undertakings since 1901, under
license issued in this state.
In August, 1907, the Tonopah Lumber Company obtained judgment against the
respondent, E. Marks, in the district court at Tonopah for the sum of $14,908.09 and $518.25
costs. After the denial there of a motion for a new trial, appeal was taken to this court.
Upon the application of E. Marks and Eliza Kind to the Tonopah agent of appellant, and
the representation of Marks that they owned property of a greater value than $200,000, it was
agreed that the appellant would furnish a bond to perfect the appeal and stay the judgment in
the required amount of $30,996.68, in consideration of Marks and Kind securing appellant
against loss by giving a mortgage to appellant, which was executed by Marks and Kind
accordingly, an delivered to appellant.
Later the judgment in favor of the Tonopah Lumber Company against Marks and others
was affirmed by this court. Thereafter they paid the Tonopah Lumber Company various sums,
leaving a balance of $7,352.40 unpaid on November 17, 1908. For the recovery of this sum,
the Tonopah Lumber Company brought an action against appellant, and on April 30, 1910,
judgment was rendered in the United States Circuit Court, Carson City, against the
appellant for $7,352.40, with $SS2.30 interest and $43.30 costs.
Tonopah Lumber Company brought an action against appellant, and on April 30, 1910,
judgment was rendered in the United States Circuit Court, Carson City, against the appellant
for $7,352.40, with $882.30 interest and $43.30 costs. On May 14, 1910, appellant paid
$8,278, the total amount of this judgment, to the Tonopah Lumber Company, and $50
attorney's fee in defending the action.
After the mortgage was executed, and before the commencement of this action, Eliza Kind
transferred her interest in the mortgaged property to E. Kind Realty Company, a corporation,
and E. Marks transferred his interest in the property to E. Marks Realty Company, a
corporation, and the latter company transferred its interest to respondent, Southern Nevada
Real Estate and Investment Company, a corporation.
This action was commenced on September 12, 1910, to obtain judgment for the $8,278
and $50 attorney's fee paid by appellant, as before stated, and to secure a decree of
foreclosure of the mortgage.
The sale by E. Marks to the Marks Realty Company was made on May 28, 1908, and was
for his half interest in lot 5 and the south half of lot 6, block B, in Tonopah, and the sale from
the Marks Realty Company of this same interest was made to Southern Nevada Real Estate
and Investment Company on July 10, 1909.
The one-half interest in lot 5 and south half of lot 6, block B, so conveyed to the Southern
Nevada Real Estate and Investment Company, was assessed by the county assessor of Nye
County for the year 1909, and the amount of tax due thereon was $52.62. The first half or
installment of this tax, $26.31, was paid on the first Monday of December, 1909, by H. C.
Schmidt, the president and manager of the investment company, from the funds of that
company.The last half of this tax was allowed to go delinquent on the first Monday in June,
1910, at which time that company still remained the owner of the interest so conveyed to it.
At the tax sale of that interest and property on July 18, 1910, H. C. Schmidt, with the
intention to thereby remove the lien of appellant's mortgage if possible, bid in the one-half
interest in lot 5 and the south half of lot 6 in the name of J. C. Hedemark, paying therefor
the delinquency and costs and penalties, but without authority or funds from him,
although he had authorized Schmidt to take title to some Tonopah property in the name
of Hedemark for the purpose of aiding Schmidt in clearing up the title.
mortgage if possible, bid in the one-half interest in lot 5 and the south half of lot 6 in the
name of J. C. Hedemark, paying therefor the delinquency and costs and penalties, but without
authority or funds from him, although he had authorized Schmidt to take title to some
Tonopah property in the name of Hedemark for the purpose of aiding Schmidt in clearing up
the title. The district court found that the neglect to pay the second tax installment was for the
purpose of protecting the Nevada Real Estate and Investment Company and the interest of H.
C. Schmidt against the line of appellant's mortgage. Of the 5,000 shares of that company he
owns 4,000, his wife 996, and a third party, who serves with them as the directors, 4 shares.
The court found that the actual value of the entire mortgaged premises would barely suffice to
reimburse appellant and discharge the mortgage, and that without the half interest in lot 5 and
the south half of lot 6, block B, the remainder of the property would be insufficient to pay
appellant's claim; that E. Marks has received his discharge in bankruptcy; that, pursuant to the
plan to defeat appellant's mortgage, the Southern Real Estate and Investment Company
intentionally neglected to redeem the interest from the tax sale.
Finding No. 19 of the district court is as follows: That by the laws of the State of
Maryland a Nevada surety company doing business in Maryland would, at the date of the
entering into the contract in question in this case, to wit, on September 18, 1907, have been
required to pay a tax upon premiums collected by such Nevada corporation in the State of
Maryland, amounting to 1 1/2 per cent of such premiums during the last license year, without
any deductions whatever; that the plaintiff has never paid to the state controller of the State of
Nevada any tax upon premiums collected by plaintiff in the State of Nevada, although
plaintiff collected premiums in the State of Nevada as a surety company and for surety
business during the tax year immediately preceding the execution of the contract and
mortgage and the collection of the premium specified in the complaint herein; that by
reason of such failure on the part of said plaintiff to pay the tax aforesaid before
transacting the business mentioned and described in the complaint of plaintiff herein the
said plaintiff forfeited any rights that it might have to do business in this state, and
plaintiff, by reason of such failure and forfeiture, had no right to enter into the contract
set forth in plaintiff's complaint, and any such contract attempted to be entered into by
the said plaintiff as is attempted to be pleaded in this action is null and void, and cannot
be enforced in this state.
premium specified in the complaint herein; that by reason of such failure on the part of said
plaintiff to pay the tax aforesaid before transacting the business mentioned and described in
the complaint of plaintiff herein the said plaintiff forfeited any rights that it might have to do
business in this state, and plaintiff, by reason of such failure and forfeiture, had no right to
enter into the contract set forth in plaintiff's complaint, and any such contract attempted to be
entered into by the said plaintiff as is attempted to be pleaded in this action is null and void,
and cannot be enforced in this state.
As conclusions of law from the foregoing facts the court finds: (1) That plaintiff has no
right to sue upon said contract and mortgage, and that the same is null and void, and
judgment is ordered for the defendants herein, with their costs.
In our general corporation law, section 106, which was in force at the time of the
execution of the mortgage and until 1913, reads as follows: When, by the laws of any other
state, country, territory, colony, dependency, or nation, any other or greater taxes, fines,
penalties, licenses, fees, or other obligations or requirements are imposed upon corporations
of this state, doing business in such other state or nation, or upon their agents therein, than the
laws of this state impose upon their corporations or agents doing business in this state, so
long as such laws continue in force in such other or foreign state or nation, territory, colony,
dependency, or country the same taxes, fines, penalties, licenses, fees, obligations, and
requirements of whatever kind shall be imposed upon all corporations of such other state or
nation, country, territory, colony, or dependency doing business within this state and upon
their agents here; provided, that nothing herein shall be held to repeal any duty, condition, or
requirement now imposed by law upon such corporations or other states or nations
transacting business in the state.
[1-2] Among the various provisions in the statutes of Maryland relating to insurance
companies is the following: "No person shall act as agent or solicitor in this state for any
insurance company, including individuals, whether resident or nonresidents, partnership
or joint-stock association, except for such companies as may be chartered under the laws
of this state, in any manner whatever relating to insurance risks, until all the provisions of
this article relating thereto have been complied with, and there has been granted by the
insurance commissioner a certificate of authority or license, for which said company,
individual, resident or nonresident, association, or their agent, shall pay into the state
treasury the sum of three hundred dollars, and shall also pay into the said treasury a tax
of one and one-half per centum on the amount of premiums actually collected, received or
secured in this state, or from residents thereof, during the last license year, by or for said
company.
No person shall act as agent or solicitor in this state for any insurance company, including
individuals, whether resident or nonresidents, partnership or joint-stock association, except
for such companies as may be chartered under the laws of this state, in any manner whatever
relating to insurance risks, until all the provisions of this article relating thereto have been
complied with, and there has been granted by the insurance commissioner a certificate of
authority or license, for which said company, individual, resident or nonresident, association,
or their agent, shall pay into the state treasury the sum of three hundred dollars, and shall also
pay into the said treasury a tax of one and one-half per centum on the amount of premiums
actually collected, received or secured in this state, or from residents thereof, during the last
license year, by or for said company. * * * (Laws 1894, c. 290.)
Section 138 of the corporation laws of that state provides that: Any person or persons, or
any company or association, violating any of the provisions of sections 121-137, of this
article, shall be subject to a fine of not less than one hundred dollars, nor more than one
thousand dollars. (Code Pub. Gen. Laws 1888, art. 23.)
If these sections, and others cited by the respondent, have any reference to surety
companies, and if the transaction by which the appellant went on the appeal and stay bond in
the case of the Tonopah Lumber Company be regarded as an insurance risk, still it does not
appear that there is any provision in the laws of either state that any surety or other company
entering into such a transaction while licensed to do business in the state, as appellant was
here, shall not be allowed to maintain an action to recover upon a mortgage or obligation
given to indemnify it against loss resulting from its having to pay the judgment affirmed
against the parties who executed the mortgage.
If all the details of the Maryland law were in force in this state, and the license should not
have been issued to the appellant here to do business until it had complied with all the
requirements of both the Maryland and Nevada laws, and had paid 1 1J2 per cent of the
amount of the previous year's premiums, we think it would be inequitable and too severe
to hold that the appellant could not be reimbursed for the debt and judgment it paid
pursuant to the agreement and mortgage executed while it held a license to do business
in this state.
Nevada laws, and had paid 1 1/2 per cent of the amount of the previous year's premiums, we
think it would be inequitable and too severe to hold that the appellant could not be
reimbursed for the debt and judgment it paid pursuant to the agreement and mortgage
executed while it held a license to do business in this state. Penalties or forfeitures, in
addition to those stated in the statute, should not be implied or imposed by the courts.
Whether this percentage could not be exacted before or collected after the issuance of the
license, and whether the fine could be collected under the Maryland statute, are matters in
which the state, rather than the respondent, is interested. Perhaps the appellant did not know
of the Nevada retaliatory statute, and the officers here may not have been aware of the
Maryland law.
It is a well-settled rule that penalties not expressed are not favored, and that the court will
not read or legislate into a statute forfeitures which it does not provide. The contention as to
whether section 106 of our corporation law brought the provisions of the Maryand act into
force in this state is immaterial. If it be admitted for the purposes of this case that the
Maryland statute was as effective as if it had been regularly passed by our legislature, it is still
apparent that it has no provision authorizing the confiscation or forfeiture of appellant's
mortgage, or providing that it shall not have the right to sue for its foreclosure or bring other
actions, or that it shall not have the right to do business in this state while holding a license
for that purpose. If appellant were liable for all that the Maryland law exacts, and can be
required to pay a percentage on its business for the previous year, or be fined or have its
officers imprisoned for failure to make such payment, or could have been refused a license
until this percentage was paid, it does not follow that the penalties not specified in the statute,
such as the forfeitures of the mortgage or the right to foreclosure, can be imposed by the
courts. If the judgment were correct, it would apply to deprive the appellant from recovering
if $1,000,000 instead of $S,000 had been paid by appellant to the Tonopah Lumber
Company for the mortgagor respondents.
from recovering if $1,000,000 instead of $8,000 had been paid by appellant to the Tonopah
Lumber Company for the mortgagor respondents.
[3] The learned district judge properly concluded that the allowing of the tax to go
delinquent, or the bidding in at the tax sale by the owner of the property, or by the president
and manager of the Southern Nevada Real Estate and Investment Company, with the
intention of freeing the property from the mortgage lien, did not effect that purpose.
[4] In the elaborate briefs numerous constitutional questions have been presented. This
court has held at different times that no determination of such proposition will be made when
not essential to a decision of the case.
As the case was carefully tried, and under the specific findings the appellant is entitled to
have its mortgage foreclosed and the property sold to pay the amount due appellant, the case
is remanded, and the district court is directed to enter judgment and order of foreclosure in
favor of the appellant accordingly.
Per Curiam:
Rehearing denied.
____________
37 Nev. 314, 314 (1914) Ormsby County v. Kearney
[No. 2107]
ORMSBY COUNTY AND THE COUNTY COMMISSIONERS OF ORMSBY COUNTY,
Relators, v. WILLIAM M. KEARNEY, as State Engineer, Respondent.
[No. 2115]
JOHANNES ANDERSON, Et Al., Respondents, v.
WILLIAM M. KEARNEY, Appellant.
[142 Pac. 803]
Opinion of Norcross, J.
1. Waters and WatercoursesState RegulationPolice Power.
The state, within its police power, may regulate the distribution of the waters of the state. The state is
not only interested in protecting prior appropriators in their rights, but is also interested in the
conservation of the waters to the end that the greatest possible amount of land may be brought under
cultivation through an economical diversion and use of such waters. To accomplish this object the state
has a right to exercise a superintending control.
2. Waters and WatercoursesState RegulationPolice PowerConstitutional Law.
Assuming the establishment of the relative rights of water users on a stream system, no constitutional
right is infringed by a system of state control such as is provided in sections 52 to 56 of the water law of
1913 (Stats. 1913, c. 140.)
3. Waters and WatercoursesState RegulationPolice PowerConstitutional Law.
The constitutionality of sections 18 to 51 of the act of 1913, providing a method of determining the
relative rights of water users upon a stream system by the state engineer, should be viewed with reference
to the purpose designed to be accomplished by sections 52 to 56 of said act, which latter sections are
clearly administrative in character.
4. Waters and WatercoursesState RegulationPolice PowerConstitutional LawDue
Process of Law.
The provisions of sections 18 to 51, inclusive, do not contemplate the deprivation of property without
due process of law; they contemplate the securing to water users their rights, not the taking of the same
away. For purposes of administration the enjoyment of such rights may be affected, but only after notice
and hearing, and the right to adjudication by the courts is not taken away.
5. Constitutional LawDue Process of LawCourts.
Due process of law is not limited to judicial proceedings, but also comprehends determinations by
administrative officers or boards where notice and a hearing are provided.
6. Constitutional LawJudicial FunctionsWater Law of 1913.
The provisions generally of sections 18 to 51, inclusive, of the water law of 1913, considered for
purposes of administration, are not violative of article 3 of the state constitution, dividing the state
government into three coordinate departments.
7. Constitutional LawJurisdiction of CourtsWater Law of 1913.
The provisions of sections 18 to 51, inclusive, are not violative of section 6 of article 6 of the
constitution, fixing the appellate and original jurisdiction of district courts, in that the determinations made
by the state engineer of the relative rights of water users are not made in cases in equity or cases at law,
as those terms are used in said section.
8. Constitutional LawWater Law of 1913.
In so far as the water law of 1913 authorizes the state engineer to investigate and determine the relative
rights of water appropriators or users upon any stream or stream system, or requires statements to be made
by the several claimants of their respective claims and requires such claimants to support the same with
proofs, and authorizes the state engineer to determine contests, or authorizes the control of the distribution
of the waters of a stream to the persons found to be entitled thereto, the law is valid.
9. Constitutional LawQuestions Unnecessary to Determine.
Questions presented in certain of the provisions of sections 18 to 51, inclusive, such as whether the
determinations made by the state engineer have any force other than as being controlling for purposes of
the administration of the law, until modified, suspended, or set aside by some order or decree of the court,
or whether the methods prescribed for appeal from the decisions of the state engineer in cases of contest
are valid, are unnecessary to be determined in this case, and will not be considered under the rule that
constitutional questions not essential to a determination of the case will not usually be determined.
10. Waters and WatercoursesWater Law of 1913.
The provisions of section 84 of the water law of 1913 providing: Nothing in this act contained shall
impair the vested right of any person, * * * nor shall the right of any person * * * be impaired or affected
by any of the provisions of this act where appropriations have been initiated in accordance with law prior to
the approval of this act, does not limit the power of the state engineer to determine for administrative
purposes relative rights of water appropriators or users vested prior to the passage of the act, and to
administer such prior acquired rights in accordance with such determinations subject to remedy by the
courts for errors in determinations.
11. Waters and WatercourseState RegulationVested Rights, What Is Unlawful
Interference With.
It is not an unlawful interference with the vested rights of water appropriators to so control those rights
that each may have what belongs to him, but that he may not voluntarily interfere with the rights of others.
Opinion of Talbot, C. J.
1. StatutesPartial Invalidity.
Where a part of a section of a statute is unconstitutional, such invalidity will not necessarily prevent the
enforcement of the remainder.
2. Waters and WatercoursesState Water SupplyRegulationControlPolice Power.
The state, in the exercise of its police power to prescribe laws for the general welfare, may provide for
inspection, regulation, and exercise a superintending control over the waters and watercourses of the state,
and Stats. 1913, c. 140, known as the water act, and giving the state engineer the right to institute
proceedings to determine the rights of the owners and persons controlling water rights in the state, if
construed as administrative only and not to impair vested rights, is valid.
3. Constitutional LawGovernmental AuthorityDivisionEncroachment on Judiciary.
Stats. 1913, c. 140, providing for the establishment of water rights in proceedings before the state
engineer, and authorizing such administrative officer to make decrees which, in the absence of appeal, are
declared final, in so far as it attempts to make such decrees conclusive on the parties, is unconstitutional as
impairing the constitutional power of the judiciary, under Const. art. 6, sec. 1, declaring that the judicial
power of the state shall be vested in certain specified courts.
Opinion of McCarran, J. (Dissenting Generally)
1. Constitutional LawWater Law of 1913Powers of State Engineer.
Sections 18 to 51, inclusive, of the water law of 1913 are unconstitutional and void in that they attempt to
invest the state engineer with powers to affect or destroy the property rights of water appropriators or users
in violation of the due process of law provisions of the federal and state constitutions, and because they
attempt to invest the state engineer with judicial powers reposed in the courts, in violation of article 3,
section 1, and article 6, sections 1 and 6, of the state constitution.
2. Waters and WatercoursesWater Law of 1913Statutes Adopted from Other States, Rule
of Construction.
Courts of a state which have adopted a statute from another state, after it has been construed by the courts
of that state, are not bound by such construction, where the organic law of the two states differ in essential
particulars affecting the law in question, or where the laws are not identical, or where the
circumstances of the people of the adopting state are essentially different.
in question, or where the laws are not identical, or where the circumstances of the people of the adopting
state are essentially different. Held, also, that the Nevada water law of 1913 differs in essential particulars
from the water laws of Wyoming and Nebraska, and that the constitutions of those states also differ in
material particulars, hence, this court is not bound by the decisions of the highest courts of those states
construing the provisions of their water laws.
3. Waters and WatercoursesWater Law of 1913Retroaction.
It was the purpose of the legislature, particularly emphasized by section 84 of the water law of 1913, to
recognize appropriations made under former laws or legislative acts and to keep those appropriations free
from being affected or impaired by anything contained in the water law of 1913.
No. 2107. Original proceeding in prohibition by Ormsby County to prohibit the State
Engineer from proceeding under the water law of 1913 (Stats. 1913, c. 140) to determine the
relative rights of the appropriators and users of waters of Clear Creek. Writ dismissed.
No. 2115. Appeal from the Sixth Judicial District Court, Humboldt County; Edwin A.
Ducker, Judge.
Suit by Johannes Anderson and others against W. M. Kearney, as State Engineer, to
restrain him from taking proceedings under the water law of 1913 (Stats. 1913, c. 140), to
determine the right of complainants and others to appropriations of the water of the Humboldt
River and its tributaries. From an order denying the motion to set aside a temporary
injunction, the State Engineer appeals. Order modified.
Statement of Facts
Cases No. 2107 and 2115 involve substantially the same questions and were heard
together. Case 2107 was a proceeding in prohibition against the state engineer to prohibit that
officer from proceeding to determine the relative priorities of water users or appropriators
upon Clear Creek; the county of Ormsby being one of such users or appropriators. Case 2115
was an action instituted by Johannes Anderson and fifty other claimants or appropriators of
the waters of the Humboldt River for themselves and for all other claimants or appropriators
of the waters of said river to obtain a decree establishing: "That defendant, state
engineer, has no right or authority to hear or determine any matter or thing relating to or
concerning the relative right of plaintiffs, or either of them, or any other claimant to or
appropriation of the water of said Humboldt River and its tributaries, which said rights to
or appropriations of said waters have been made and completed prior to the approval of
said act, approved March 22, 1913.
of the waters of said river to obtain a decree establishing: That defendant, state engineer, has
no right or authority to hear or determine any matter or thing relating to or concerning the
relative right of plaintiffs, or either of them, or any other claimant to or appropriation of the
water of said Humboldt River and its tributaries, which said rights to or appropriations of said
waters have been made and completed prior to the approval of said act, approved March 22,
1913. * * * That sections 18 to 58, both inclusive, of said act, approved March 22, 1913, are,
and each of said sections is, and each and every part of each of said sections is,
unconstitutional, invalid, null, and void.
In case No. 2115 a temporary injunction was also prayed for and granted. From an order
denying a motion to set aside such temporary injunction, the state engineer appeals.
These cases involve the constitutionality of certain provisions of what is known as the
state water law of 1913 (Stats. 1913, p. 192). The act in question is entitled: An act to
provide a water law for the State of Nevada; providing a system of state control; creating the
office of the state engineer and other offices connected with the appropriation, distribution
and use of water; prescribing the duties and powers of the state engineer and other officers
and fixing their compensation; prescribing the duties of water users and providing penalties
for failure to perform such duties; providing for the appointment of water commissioners,
defining their duties and fixing their compensations; * * * and other matters properly
connected therewith, and to repeal all acts * * * in conflict with this act, etc.
A brief synopsis of the principal provisions to the sections of the act, involved in these
cases, follows.
By section 18 it is provided that, upon petition to the state engineer of one or more of the
water users of a stream or stream system or upon his own initiative, it is the duty of the state
engineer to enter an order for the determination of relative rights.
Section 19 provides for publication of notice of such order and the date when the state
engineer shall begin examination of the rights of water users, and that water claimants
will be required to furnish proofs of their claims.
order and the date when the state engineer shall begin examination of the rights of water
users, and that water claimants will be required to furnish proofs of their claims.
Sections 20 and 21 provide for the gathering of certain data and information by the state
engineer and matters essential to the proper determination of the water rights of the stream,
which data shall consist of surveys, maps, measurements, etc.
Section 22 provides that, upon the filing of such data and information, the state engineer
shall publish and mail notice to claimants of the date when he is to commence the taking of
proofs of the water rights and the date prior to which the same must be filed.
Sections 23 and 24 provide that there shall be enclosed in such written notice a blank
form, to be filled out and verified by the water claimant in furnishing information for the
determination of the claimant's rights.
Section 25 provides that it shall be the duty of the state engineer to commence the taking
of proofs on the day fixed in the notice, and that he shall proceed therewith during the period
fixed by him and named in the said notice, after which no proofs can be received or filed,
except for cause shown: that failure to furnish proofs within the time prescribed is a
misdemeanor; that the state engineer may, in his discretion, accept and use certain records as
proof of claims; that a finding rendered by the state engineer upon a water claim, the holder
of which is in default, shall be given a later priority than the rights of claimants whose proofs
were duly filed.
Section 26 provides for the intervention of persons interested, upon whom no service of
notice shall have been had.
Section 28 provides that, as soon as practicable after the expiration of the period fixed in
which proofs may be filed, the state engineer shall assemble all proofs filed and prepare an
abstract which shall be printed; that thereafter the state engineer shall prepare a notice fixing
and setting a time and place when and where the evidence taken by or filed by him shall be
open to inspection of all interested persons; that a copy of said notice, together with a
printed copy of the abstract of proofs, shall be delivered or sent by registered mail at least
thirty days prior to the first day of such period of inspection to each person who has
appeared and filed proof; that such proofs shall be open to inspection.
together with a printed copy of the abstract of proofs, shall be delivered or sent by registered
mail at least thirty days prior to the first day of such period of inspection to each person who
has appeared and filed proof; that such proofs shall be open to inspection.
Section 29 provides that any person, claiming any interest in the stream system, whether
claiming under vested title or under permit from the state engineer, who desires to contest any
of the statements and proof of claims filed, shall, within twenty days after said evidence and
proofs shall have been open to public inspection, in writing, notify the state engineer, stating
with reasonable certainty the grounds of the proposed contest; that the statement or proofs of
the person whose rights are contested and the verified statement of the contestant shall be
deemed sufficient to constitute a proper cause for such contest.
Section 30 provides for the hearing of such contest before the state engineer, the time and
manner of conducting the same, and that the evidence in such proceeding shall be confined to
the subject enumerated in the notice of contest and answer and reply, when the same are
permitted to be filed, and that all testimony taken at such hearing shall be reported and
transcribed in its entirety.
Section 33 provides that, after the hearing of contests, it shall be the duty of the state
engineer to cause to be entered of record in his office and served on interested parties an order
determining and establishing the several rights to the waters of said stream; that the
determination of the state engineer shall be in full force and effect from and after the date of
such entry unless stayed by an appeal to the courts.
Section 34 provides that aggrieved parties may have, within six months, an appeal from
the order of the state engineer to the district court.
Section 35 provides that parties appealing shall file in the district court an undertaking and
a notice in writing stating that such parties appeal from the determination and order of the
state engineer.
Section 36 provides for notice to the state engineer and to the parties whose rights may be
affected by the appeal.
Section 37 provides that the appellants shall file with the clerk of the district court a
certified transcript of the order of determination and the records, maps, evidence, and papers
used in the hearing, together with the petition setting out the cause of the complaint of the
party or parties appealing, to which petition all parties joined as appellees shall be served with
notice by the issuance of a summons as in actions of law.
Section 38 provides that the proceedings on appeal shall be conducted according to the
provisions of the civil code of procedure governing appeals from the justice court to the
district court and from the district court to the supreme court.
Section 39 provides that a copy of any judgment rendered by the district court shall be
transmitted to and be controlling upon the state engineer.
Section 43 provides that the civil practice act shall govern appeals from the decrees of the
district court and for rehearings in the supreme court.
Section 44 provides that the final orders or decrees of the state engineer in the proceedings
shall be conclusive as to all prior appropriations, and the rights of all existing claimants
subject to the provisions for appeals, rehearings, and for the reopening of orders and decrees
therein.
Section 45 provides that, in any suit which may be brought in any district court for the
determination of water rights, all interested persons shall be made parties; that, in the case of
any suit now pending or hereafter commenced, the same may be transferred to the state
engineer for determination, as in this act provided.
Section 52 provides for the appointment by the state board of irrigation of water
commissioners for each water district, and provides for the salary and duties of such
commissioners, and that the same shall be charged against the water users.
Section 53 provides that the state engineer shall divide the state into water districts to be
so constituted as to insure the best protection for the water users and the most economical
supervision upon the part of the state; said water districts to be created as the necessity
therefor shall arise, and shall be created from time to time as the priorities and claims to
the streams of the state shall be determined.
insure the best protection for the water users and the most economical supervision upon the
part of the state; said water districts to be created as the necessity therefor shall arise, and
shall be created from time to time as the priorities and claims to the streams of the state shall
be determined.
Section 54 provides that it shall be the duty of the state engineer to divide, or cause to be
divided, the waters of the natural streams, or other sources of supply in the state, among the
several ditches or reservoirs taking water therefrom, according to the respective rights of
users, in whole or in part, and to regulate, or to cause to be regulated, the controlling works of
reservoirs as may be necessary to insure proper distribution of waters thereof.
Section 54-56, inclusive, contain other and additional provisions relative to the powers and
duties of the state engineer and water commissioners in the administration of the distribution
of the waters of any stream or stream system.
Section 84 of the act provides: Nothing in this act contained shall impair the vested right
of any person to the use of water, nor shall the right of any person to take and use water be
impaired or affected by any of the provisions of this act where appropriations have been
initiated in accordance with law prior to the approval of this act. Any and all appropriations
based upon applications and permits now on file in the state engineer's office, shall be
perfected in accordance with the laws in force at the time of their filing.
Section 87 of the act provides: Each section of this act and every part of each section is
hereby declared to be independent sections, and parts of sections, and the holding of any
section or part thereof to be void or ineffective for any cause shall not be deemed to affect any
section or any part thereof.
John M. Chartz, District Attorney of Ormsby County, for Relator:
The provisions of the water law of 1913 authorizing the state engineer to determine
relative rights of water appropriators and users is unconstitutional in that it deprives the
owners of such rights of due process of law.
the state engineer to determine relative rights of water appropriators and users is
unconstitutional in that it deprives the owners of such rights of due process of law. (Am. &
Eng. Enc. of Law, vol. 10, p. 291; Braceville Coal Co. v. People, 147 Ill. 66; Hager v.
Reclamation District, 111 U. S. 701; Davidson v. New Orleans, 96 U. S. 97; Bertholf v.
O'Reilly, 74 N. Y. 98; Davis v. McKeeby, 5 Nev. 569 [369]; Gibson v. Mason, 5 Nev. 283.)
The water law of 1913 violates article 3, section 1, and article 6, section 1, of the state
constitution in that it invests the state engineer with judicial powers. (Thorpe v. Woolman, 1
Mont. 168.)
The water law of 1913 is violative of article 6, section 6, of the constitution of the state
prescribing the jurisdiction of district courts. (Caulfield v. Hudson, 3 Cal. 389; Reed v.
McCormick, 4 Cal. 342; People v. Fowler, 9 Cal. 85.)
Summerfield & Richards, for Respondent:
The fatal mistake made by the assailants of the water law of 1913 is in assuming that the
phrase due process of law necessarily is confined to proceedings of a strictly judicial
nature. One of the many correct definitions of the phrase is: An orderly proceeding adapted
to the nature of the case, in which the citizen has an opportunity to be heard, and to defend,
enforce, and protect his rights. (Meyers v. Shields, 61 Fed. 713; Zeigler v. Smith R. Co., 58
Ala. 594; McGavock v. Omaha, 40 Neb. 64; State v. Billings, 55 Minn. 467; In Re Union R.
Co., 112 N. Y. 61; Gibson v. Mason, 5 Nev. 283; Pennoyer v. Neff, 95 U. S. 714; 8 Cyc.
1082.)
The act under assault all the way scrupulously provides for orderly procedure and carefully
makes notice to all interested parties a requisite to proceeding. It affords to all whose rights
may be affected the most ample opportunities to be heard, to defend, and to protect their
rights. If this act is fairly observed, no real or substantial rights can be lost by any one except
as a result of his neglect or indifference.
Again, it has been well said the constitutional provisions that no person shall be deprived
of life, liberty, or property without due process of law extend to every governmental
proceeding which may interfere with personal or property rights, whether the proceeding
be legislative, judicial, administrative, or executive."
liberty, or property without due process of law extend to every governmental proceeding
which may interfere with personal or property rights, whether the proceeding be legislative,
judicial, administrative, or executive. (8 Cyc. 1083; Holden v. Hardy, 169 U. S. 366;
Hurtado v. California, 110 U. S. 516; Dorman v. State, 34 Ala. 216; Sherman v. Buick, 32
Cal. 241; Camp v. Rogers, 44 Conn. 291; Foule v. Mann, 53 Iowa, 42; Louisville v.
Cochrane, 82 Ky. 15; State v. Doherty, 60 Me. 504; Crane v. Waldron, 94 N. W. 593; State
v. Examiners, 34 Minn. 387; Clark v. Mitchell, 64 Mo. 564; Low v. Printing Co., 41 Neb.
127; Stuart v. Palmer, 74 N. Y. 183; Huber v. Reilley, 53 Pa. St. 112; Davis v. State, 3 Lea,
376.)
The procedure prescribed by the law attacked preserves the substance of all acquired water
rights and amply provides opportunities for the dissatisfied to invoke the equal protection of
law by appropriate and adequate judicial proceedings. This being so, it is difficult to perceive
how it denies due process of law. (8 Cyc. 1095; Farm Inv. Co. v. Carpenter, 61 Pac. 258;
Ludeling v. Chaffu, 143 U. S. 301; Leeper v. Texas, 139 U. S. 462; Lynde v. Lynde, 181 U. S.
183; Salt Creek Co. v. Parks, 50 Ohio St. 568.)
The powers conferred by the act are administrative and quasi-judicial and are not judicial
in the constitutional sense in violation of article 3, section 1, of the state constitution. (Farm
Inv. Co. v. Carpenter, 61 Pac. 258; Crawford v. Hathaway, 93 N. W. 781.)
While it is true that the Wyoming constitution created a board of control to have
supervision of the appropriation, distribution, and diversion of the water of that state (7
American Constitutions and Charters, 4138), yet that fact does not weaken the force of the
decision in Farm Inv. Co. v. Carpenter, supra, as applied to the facts of this proceeding.
What is not constitutionally inhibited belongs as fully to the lawmaking power as though it
was constitutionally conferred.
It is well to remember, however, that the constitution of Nebraska is, like our own, silent
upon the subject of irrigation and water rights.
irrigation and water rights. (4 American Constitutions and Charters, 2631, et seq.)
It would seem therefore, that the decision in Crawford v. Hathaway, supra, is well worthy
of careful consideration in this proceeding and especially for the reason that it adopted the
views of the Wyoming Supreme Court regardless of the fact that the Wyoming constitution
contained an express article on irrigation and water rights.
That the Carpenter act does not attempt to confer upon the state engineer any powers
nearer a judicial nature than is conferred by law upon some of our state commissions and
officials, such as the railroad commission, the industrial commission, the state board of
health, state board of bank commissioners and bank examiners, and numerous other bodies or
officials created by statute is clearly manifest. It seems equally apparent that none of them
exercise the powers belonging to the judiciary in the constitutional sense.
The act is not violative of section 20 of article 4 of our state constitution. The act in no
wise attempts to strip courts of their constitutional jurisdiction or to fasten on them a novel
course of practice, but, upon the contrary, expressly permits all aggrieved parties to invoke
the exercise of the full powers of the courts in proceedings de novo in character, and under
simplified pleadings already framed, if they so desire. (State v. McKinney, 5 Nev. 194;
Holmes v. Mattson, 111 Ill. 27; Insurance Co. v. Bachler, 44 Neb. 549; Dallas v. Western
Co., 83 Tex. 243; McDonald v. Conniff, 99 Cal. 386; Citizens Co. v. Jolly, 161 Ind. 80;
Cincinnati Co. v. Felix, 25 Ohio Cir. Ct. 393; Jacksonville Co. v. Adams, 33 Fla. 608; Rider
v. Mt. Vernon, 87 Hun, 27; Boggs v. Ganeard, 148 Cal. 711; State v. Lumber Co., 170 Mo. 7;
Title Co. v. Kenigan, 150 Cal. 289.)
The water law of 1913 is not violative of section 6 of article 4 of the state constitution. Our
constitution does not, in words, vest in the district courts exclusive jurisdiction or exclusive
final appellate jurisdiction. While the court may have original jurisdiction or final appellate
jurisdiction in the cases enumerated in the organic law, yet it does not necessarily follow
that such jurisdiction is exclusive.
jurisdiction in the cases enumerated in the organic law, yet it does not necessarily follow that
such jurisdiction is exclusive. The word appeal as used in the act (secs. 34, 35, 36, 41, 42)
means neither more nor less than that any one feeling himself aggrieved at the rulings of the
state engineer may refer his grievance to the proper district court, which, in the exercise of its
original jurisdiction, may try the case de novo, unhampered and unrestricted by any previous
action of the state engineer, and that, after the district court has rendered its judgment or
decree in the matter, appeal therefrom is expressly permitted to the supreme court.
Section 44 of the act is not an usurpation of the functions of the courts for the reason that
the very same section provides that the same shall be subject, however, to the provisions of
law for appeals, rehearings, and for the reopening of the orders or decrees therein.
The act under consideration may be compared with other acts found in our statute books
with reference to the extent and nature of the power and authority conferred upon officials
and boards created by statute. (State v. State B. & T. Co., 31 Nev. 456; Southern Pacific Co.
v. Bartine, et al., 170 Fed. 725.)
Cheney, Downer, Price & Hawkins, amicus curiae.
[noteSee brief under No. 2115.]
Geo. B. Thatcher, Attorney-General, for Appellant:
Under the doctrine of appropriations in the arid states, there is no property in the stream
itself. (Wheeler v. Irrigation Co., 17 Pac. 487; Fort Morgan Co. v. South Platte Co., 30 Pac.
1032; Farm Inv. Co. v. Carpenter, 50 L. R. A. 757; Strait v. Brown, 16 Nev. 317; Reno S.
Works v. Stevenson, 20 Nev. 269; Jones v. Adams, 19 Nev. 78; Cutting's Compiled Laws, sec.
354.)
If the state is the owner of the water and the streams, most assuredly it would seem to
follow that the state has the right to regulate and control. It has the right through
administrative officers to make investigation of the streams, determine the amount of water
appropriated, and the amount unappropriated and remaining in the state, and to police
and regulate the distribution to appropriators.
and the amount unappropriated and remaining in the state, and to police and regulate the
distribution to appropriators. To do these things it is necessary that some one be authorized by
law to make these investigations, and under the water law of 1913 the state engineer is vested
with these powers. (White v. Farmers' Highline C. & R. Co., 43 Pac. 1028.)
That the state regulation and control is within the police power of the state has been
decided in numerous cases. (Farmers' Independent Ditch Co. v. Agricultural Ditch Co., 45
Pac. 444; White v. Farmers' Highline C. & R. Co., 43 Pac. 1028, 31 L. R. A. 828; Louden Irr.
Co. v. Handy Ditch Co., 43 Pac. 535.)
The water law of 1913 is not violative of section 1 of article 3, dividing the state
government into three distinct departments, or with section 1 of article 6, which invests the
judicial power of the state in the supreme court, district courts, and justices of the peace.
(Farm. Inv. Co. v. Carpenter, 50 L. R. A. 747; Crawford Co. v. Hathaway, 67 Neb. 325;
McCook Irr. Co. v. Crews, 70 Neb. 115; Irrigation District v. Tri-State Land Co., 138 N. W.
180; Farmers' Canal Co. v. Frank, 72 Neb. 136-152; Sawyer v. Dooley, 21 Nev. 390.)
This court will observe from a reading and comparison of the Nevada act and the Wyoming
and Nebraska acts that our act is adopted from those states. The sections under attack here
and the corresponding sections of the Wyoming and Nebraska acts are as follows:
Nevada Wyoming Nebraska Nevada Wyoming Nebraska
Sec. 18 763-4 6795-7 Sec. 35 780 6802
Sec. 19 765 6797 Sec. 36 781 6803
Sec. 20 776 6798 Sec. 37 782 6804
Sec. 22 767 6798 Sec. 38 783 6804
Sec. 23 768 6799 Sec. 39 784
Sec. 24 769 Sec. 40 785
Sec. 25 6805 Sec. 41 786
Sec. 28 770-1 Sec. 42 787
Sec. 29 772-3 Sec. 43 787 6804
Sec. 32 774 Sec. 44 793
Sec. 33 777-8 Sec. 51 6800
Sec. 34 779 6801 The construction placed upon substantially the same
acts by the courts of Wyoming and Nebraska is binding upon the courts of this state.
The construction placed upon substantially the same acts by the courts of Wyoming and
Nebraska is binding upon the courts of this state. (Cowhick v. Shingle, 5 Wyo. 87, 63 Am. St.
Rep. 1; Laporte v. Gamewell Tel. Co., 146 Ind. 466, 58 Am. St. Rep. 359.)
The water law of 1913 is not violative of section 6 of article 6 of the constitution prescribing
the original and appellate jurisdiction of district courts. (Farm Inv. Co. v. Carpenter, 50 L. R.
A. 755; Dickson v. Corbett, 10 Nev. 439.)
Cheney, Downer, Price & Hawkins, for Respondents:
There are three primary questions to be determined:
FirstDoes the water law of 1913, in fact, authorize and empower the state engineer to
adjudicate and determinethereby fixing the date of priority, the quantity of water and the
place and manner of use, by a final order or decreethe right, title, and interest of plaintiffs
to the use of water, when those rights, titles, and interest were initiated and became vested
property rights, according to the law prior to the creation of the office of state engineer, and
prior to any statute in reference thereto, and prior to the approval of said water law of 1913?
SecondDoes said water law of 1913 mean what it says in section 84 thereof, and
therefore upon its face show that it does not apply to the vested right of any person to the use
of water acquired in accordance with law prior to the approval of said water law of 1913?
ThirdIf said water law of 1913 does in fact authorize and empower the state engineer to
adjudicate and determinethereby fixing the date of priority, quantity of water and the place
and manner of use by final order or decreethe right, title, and interest of plaintiffs and other
appropriators to the use of water, when those rights, titles, and interests were initiated and
became vested property rights according to the law, prior to the creation of the office of state
engineer, and prior to any statute in reference thereto, and prior to the approval of said water
law of 1913are the sections of said water law of 1913, so attempting to vest in the state
engineer such powers, in contravention of the provisions of the constitution of the United
States and the constitution of the State of Nevada?
of said water law of 1913are the sections of said water law of 1913, so attempting to vest in
the state engineer such powers, in contravention of the provisions of the constitution of the
United States and the constitution of the State of Nevada?
If the statute is given the construction contended for by plaintiffs and respondentsto the
effect that it does not apply to or govern or provide for the adjudication and determination by
the state engineer of appropriations which were vested property rights before the creation of
the office of state engineerno hardship will be imposed upon any appropriator of water. It
is well settled that the right to the use of water appropriated is real property and governed by
the rules and laws applicable to real property. If the title or right to the use of water is
questioned by any one, the parties thereto are entitled to have their rights determined in court;
if the construction of the statute by the state engineer, to the effect that he may adjudicate and
determine these controversies, is true, then the state engineer may take from one appropriator
his vested property right and give it to another claimant, which said final order and decree of
the state engineer is, according to section 44 of said statute, conclusive, subject, however, to
the right of appeal, etc.; but the right of appeal mentioned is so hedged about and is so
expensive as to preclude the average farmer who owns a few hundred acres of land from
having or obtaining his day in court to justify his claim to the property right, which became
under the laws a vested property right. Can it be said that such provision is in harmony with
section 2 and section 84 of said water law of 1913?
If the statute only applies to appropriations initiated and made subsequent to the approval
of said water law of 1913, the solution is easy because all persons having interests adverse to
the parties appealing would be only those persons whose rights had accrued subsequent to
the approval of the water law of 1913, and procedure would be an easy matter, and of little
expense. The construction contended for by us would not impair the operation of the
statute, nor would it impair or affect the vested rights of any person to the use of water
where the appropriations have been initiated in accordance with the law prior to the
approval of this act.
operation of the statute, nor would it impair or affect the vested rights of any person to the use
of water where the appropriations have been initiated in accordance with the law prior to the
approval of this act.
An appropriation of water may be made in the absence of constitutional or statutory
provisions, and the appropriations thus made becomes a vested property right, and it is the
duty of both national and state governments to protect it. It seems clear that the
appropriations, made in the absence of restrictions, cannot be impaired by subsequent
legislation, but such legislation would only apply to appropriations made after and in
accordance with such legislation. (Coffin v. Left Hand Ditch Co., 6 Colo. 443.)
When the appropriations now owned by plaintiffs were acquired, there were no statutes
placing any limitations upon the appropriation, place or manner of useby the water law of
1913 the final order and decree of the state engineer will place limitations upon these vested
rights, which limitations will impair or affect the appropriations, which is contrary to the
express provisions of section 84 of said water law of 1913, and also in violation of law.
The contention of the state engineer, that the water law of 1913 should receive the same
construction by this court as was given the water statute of Wyoming and Nebraska by the
courts of those states, is without any support in fact or law.
While it is true that the water law of 1913 is, in some respects, similar to the water statute
of Wyoming and of Nebraska, yet it is also true that upon the whole it is entirely different.
There is not to be found in the statute of Wyoming or of Nebraska any such provisions as are
contained in section 84 of the water law of 1913. This difference alone is so marked and
clear-cut as to clearly distinguish the statutes and decisions of Wyoming and Nebraska from
the water law of 1913.
We, therefore, submit that the proper construction of the water law of 1913 will result in
answering the first question, hereinabove submitted, in the negative, and in answering the
second question, hereinabove submitted, in the affirmative.
answering the second question, hereinabove submitted, in the affirmative.
We will now consider the third question hereinabove submitted. Our contention is that if
the water law of 1913 is to be construed as contended for by the state engineerwhich is to
the effect that all appropriations of water which were made and became vested property rights
prior to the approval of said water law of 1913 must be submitted to and adjudicated by said
state engineer, said adjudication and determination having the same force and effect as an
adjudication and determination of said rights if made by courtthen those sections of said
water law of 1913, being sections 18 to 58, both inclusive, except section 45, are in
contravention of certain provisions of the constitution of the United States and certain
provisions of the constitution of Nevada, and are, therefore, invalid, null and void.
Appellant argues that in order that the state may properly, or at all, regulate the use and
distribution of water and grant further appropriations, it is necessary that the state, through its
administrative officers, determine the relative rights of the appropriators upon the streams and
stream systems. That such a contention is not correct is clearly shown by the authorities cited
by appellant in support of the proposition announced by him, which authorities are from
Colorado, where the administrative officers have nothing to do with the adjudication or
determination of the relative or any rights of appropriators upon the streams or stream
systems.
The general purpose of all water statutes, such as we are now considering, is to provide a
statutory procedure whereby the rights already acquired and vested may be, in one general
proceeding, reduced to permanent form and embodied and preserved in an order or decree.
The proceeding, strictly speaking, is not one in personam, nor is it a proceeding in rem, but is
rather a sui generis proceeding to quiet title or to perpetuate in permanent form the rights
theretofore acquired. (New Mercer Ditch Co. v. Armstrong, 40 Pac. 989.)
The decree gives no new right, but only establishes an old one and perpetuates evidence
thereof.
old one and perpetuates evidence thereof. (Alamosa Co. v. Nelson, 93 Pac. 1114; Rickey Land
Co. v. Miller & Lux, 152 Fed. 11; Crippen v. X. Y. Irr. Ditch Co., 76 Pac. 794, 797.)
A priority right to the use of water being a property right, it is protected by the constitution
so that no person can be deprived of it without due process of law. Is the adjudication and
determination of a priority right to the use of water a judicial determination? Wyoming and
Nebraska are the only states in the Union which have answered the question last submitted in
the negative.
Under the water law of 1913, if it is to receive from this court the construction placed upon
it by appellant, the state engineer is vested with the absolute power to take from one and give
to another real propertynot in accordance with law governing all other kinds of real
property, but according to the conclusion reached by the state engineer as to what is just and
right, from ex parte statements of interested parties and from investigations made by the state
engineer and his assistants. The appropriator whose rights are thereby impaired may never
know what evidence the decision or decree of the state engineer is based. Such a proposition
was submitted in Interstate Commerce Comm. v. L. & N. R. Co., 227 U. S. 88, 93, and the
contentions of the government were overruled.
If the adjudication and determination by the state engineer were only for the purpose of
enabling his office to determine whether or not an application to appropriate waters, claimed
by the applicant to be unappropriated, should be granted or denied, or to enable the state
engineer to determine whether or not he would cancel a permit to appropriate water (as was
the Idaho case of Speer v. Stephenson, 102 Pac. 365, cited by appellant), we would have a
different question, and such determination would be an exercise of an administrative
function. Such decisions do not affect any vested property rights. (Kinney on Irr. and Water
Rights, 2d ed.
vol. 3, sec. 1586, p. 2884; sec. 1595, p. 2901-3; Davies v. McKeeby, 5 Nev. 369, 371.)
The provisions of the constitution contravened by the water law of 1913 are: Fourteenth
Amendment to the Constitution of the United States; State Constitution, sec. 8, art. 1; sec. 1,
art. 3; sec. 20, art. 4; sec. 21, art. 4; sec. 1, art. 6; sec. 4, art. 6; sec. 6, art. 6.
The statutory declaration to the effect that the water of all sources of water supply not held
in private ownership belong to the public, which was first declared by Statutes 1903, p. 24,
does not and cannot affect any vested right to the use of water acquired prior to such statutory
declaration. (Palmer v. R. R. Comm. of California, 138 Pac. 997, 1002.)
The public parted with whatever title it may have had to the water so appropriated, and if
the appropriator does not, by some act of his own, lose the right to the use of the water so
appropriated, the state or public has not and cannot acquire any further right, title or interest
therein.
Every authority, both text and decision, so far as we are advised, except the courts in
Wyoming and Nebraska, holds that the proceedings for the determination of existing vested
rights to the use of water are strictly judicial.
The case cited (Southern Pacific Co. v. Bartine, 170 Fed. 725) is easily distinguished from
the case at bar, as are the other cases cited by the state engineer.
Nevada has no constitutional provision concerning water or water rights, as distinguished
from any other property rights. (Thorpe v. Woolman, 1 Mont. 168, 170.)
Other decisions construing similar statutes conferring similar powers upon a nonjudicial
officer or board, and holding that the powers conferred were judicial and that the proceedings
therein were judicial, and that the statutes, therefore, were unconstitutional, are: People v.
Mallary (Ill.) 63 N. E. 508; In Re Dumford (Kan.) 53 Pac. 92; Fitch v. Board of Auditors of
Claims (Mich.) 94 N. W. 952; People v. Dunn (N. Y.) 52 N. E. 572; Witter v. Cook County
Comrs. (Ill.) 100 N. E. 148; State v. Blaisdell {N. D.) 132 N. W. 769; Carolina Glass Co. v.
State {S. C.) 69 S. E. 391; State v. Brill {Minn.) 111 N. W. 294, 639; State v. Chaney {Okl.)
(N. D.) 132 N. W. 769; Carolina Glass Co. v. State (S. C.) 69 S. E. 391; State v. Brill
(Minn.) 111 N. W. 294, 639; State v. Chaney (Okl.) 102 Pac. 133; Dupree v. State (Tex.) 119
S. W. 301; Weil on Water Rights in the Western States, 3d ed. vol. 2, sec. 1194, p. 1108.
Moreover,where a state enacts a statute of another state, which has been construed by the
latter's courts, the former state is not bound by such construction, when not in harmony with
the spirit of its legislation and decisions. (F. M. Davis Iron Works Co. v. White, 71 Pac. 384;
Bowers v. Smith, 20 S. W. 101; Oleson v. Wilson, 52 Pac. 372; Smith v. Dayton C. & I. Co.,
92 S. W. 62; State v. Mortenson, 73 Pac. 562; Ancient Order of Hibernians v. Sparrow, 74
Pac. 197; Swooford Bros. Dry Goods Co. v. Mills, 86 Fed. 556, 560; Voss v. Waterloo Water
Co., 71 N. E. 208, 212-213.)
Section 84 of the water law of 1913 does not appear in the Wyoming or Nebraska statute,
which fact alone, if nothing else appeared in the statute, distinguishes our statute from the
Wyoming and Nebraska statutes, and shows that the statutory rule of construction contended
for by appellant has no application here. (Kirman v. Powning, 25 Nev. 378, 397.)
It will be admitted that the state engineer may, under the water law of 1913, deprive one of
his vested property. If one is so deprived, is it by due process of law? To take from one that
which he claims and give it to another, is to adjudicate the title to disputed ownership of
property. Such adjudication cannot be had under the water law of 1913. (Gibson v. Mason, 5
Nev. 283, 302; Persing v. Reno B. Co., 30 Nev. 342, 349; Golden v. District Court, 31 Nev.
250, 264; State v. Guilbert, 47 N. E. 551; People v. Simon, 52 N. E. 910; Brown v. Board, 50
Miss. 468.)
Section 6, art. 6, Nevada Constitution, is violated by the water law of 1913, in that it
provides for the first trial, to establish existing vested rights to the use of water, to be had
before the state engineer, and thereby deprives the district court of its original jurisdiction
and transforms the district court from a court of original jurisdiction into an appellate
court.
district court of its original jurisdiction and transforms the district court from a court of
original jurisdiction into an appellate court. We submit, under the express terms of section 6,
art. 6, of our constitution, that no appeal lies from the final order or decree of the state
engineer adjudicating vested property rights, and that the district court has no jurisdiction to
entertain an appeal from such final order or decree of the state engineer, and that the statute
attempting to confer or give the right of appeal from such order to the district court is
unconstitutional. (Caulfield v. Hudson, 3 Cal. 389, 390; Reed v. McCormick, 4 Cal. 342;
People v. Fowler, 9 Cal. 85; Lake v. Lake, 17 Nev. 230, 238.)
Under section 6, art. 6 of our constitution, the district courts have original jurisdiction of
the adjudication and determination of existing rights to the use of water. If these rights are
determined by the state engineer in the first instance, then the district court is necessarily
deprived of its original jurisdiction, and the act is unconstitutional and void. (Castner v.
Chandler, 2 Minn. 86, 88; Reed v. McCormick, 4 Cal. 342; People v. Fowler, 9 Cal. 85, 86;
State v. Rising, 10 Nev. 97, 101-102.)
Under the provisions of the Wyoming and Nebraska constitutions the courts of those states
held that an appeal from the board of control and from the board of irrigation, respectively,
would lie to the respective district courts, therefore holding that the proceedings before the
respective boards was a case, from the determination of which an appeal would lie, and the
contention of appellant that the proceeding before the state engineer is not a case to be
without merit.
This court has construed section 6, article 6, of the constitution as making the appellate
jurisdiction of the district court final in the following cases: Paul v. Beegan, 1 Nev. 329, 333;
Leonard v. Peacock, 8 Nev. 157, 161; State v. Rising, 10 Nev. 97, 101; Bancroft v. Pike, 33
Nev. 53, 80; Floyd v. Sixth Judicial District Court, 36 Nev. 349.
Whenever an act undertakes to determine, or to confer upon some one the power to
determine, a question of right or obligation or of title to property as the foundation upon
which it proceeds, such as is the contention of the state engineer under the present act,
to determine existing vested rights to the use of water, such act is to that extent a judicial
one.
upon some one the power to determine, a question of right or obligation or of title to property
as the foundation upon which it proceeds, such as is the contention of the state engineer under
the present act, to determine existing vested rights to the use of water, such act is to that
extent a judicial one. (Smith v. Strother, 8 Pac. 852, 854; Tanner v. Nelson,70 Pac. 984, 986;
In Re Sinking Fund Cases, 99 U. S. 700, 761; Whitaker v. Chicago R. I. & P. R. Co., 160 S.
W. 1009, 1012; Marbury v. Madison, 1 Cranch, 368, 388.)
Opinion by Norcross, J. (after stating the facts):
The water law of 1913 contains ninety sections and was manifestly designed to be a
comprehensive statute covering the water law of this state. Many of the provisions of the act
are not questioned in these proceedings. Those sections only are attacked which authorize the
state engineer to determine the relative rights of the appropriators of water upon the streams
in this state, which provide for appeals to the courts from the determinations made by him,
and which provide for state control, through the office of the state engineer, of the
distribution of such waters to the persons entitled thereto.
[1] It is manifest, both from the title and body of the act, that one of the main purposes of
this law, and doubtless the principal purpose, was to place the distribution of the waters of the
streams or stream systems of the state to the persons entitled thereto, under state control. The
manner of such control is prescribed in sections 52 to 56, inclusive. It is not seriously urged,
if we understand counsel correctly, that the state, within its police power, may not so regulate
the distribution of the waters of the state. It is a matter, we think, clearly within the lawful
exercise of such power. The public welfare is very greatly interested in the largest economical
use of the waters of the state for agricultural, mining, power, and other purposes. While the
police power cannot be made an excuse for the enactment of unreasonable, unjust, or
oppressive laws, it may be legitimately exercised for the purpose of preserving,
conserving, and improving the public health, safety, morals, and general welfare.
oppressive laws, it may be legitimately exercised for the purpose of preserving, conserving,
and improving the public health, safety, morals, and general welfare.
Private rights are often involved in its exercise, but a law is not on that account rendered
invalid or unconstitutional. (In Re Street Railway Corporation, 24 R. I. 603, 54 Atl. 602, 61
L. R. A. 612.)
As said by Judge Cooley in his work on Constitutional Limitations (7th ed.), p. 829: It
embraces its whole system of internal regulation by which the state seeks not only to
preserve the public order and to prevent offenses against the state, but also to establish for the
intercourse of citizens with citizens those rules of good manners and good neighborhood
which are calculated to prevent a conflict of rights, and to insure to each the uninterrupted
enjoyment of his own so far as is reasonably consistent with a like enjoyment of rights by
others.
See, also, In Re Boyce, 27 Nev. 299, 75 Pac. 1, 65 L. R. A. 47, 1 Ann. Cas. 66; Ex Parte
Pittman, 31 Nev. 43, 99 Pac. 700, 22 L. R. A. n. s. 266, 20 Ann. Cas. 1319; Noble State Bank
v. Haskell, 219 U. S. 104, 31 Sup. Ct. 186, 55 L. Ed. 112, 32 L. R. A. n. s. 1062, Ann. Cas.
1912a, 487; Davidson v. New Orleans, 96 U. S. 97, 24 L. Ed. 616; State v. Bunting, 139 Pac.
731, and authorities therein cited.
It is difficult to perceive how there may be any effective regulation or control over the
water rights of a stream system like that of the Humboldt River and its tributaries, except
through some form of state supervision. This river extends for a distance of about 300 miles,
is in five counties and three judicial districts. According to the brief of counsel for respondent
in case No. 2115, there are from 700 to 1,000 water users on the Humboldt River system.
Undoubtedly other claimants are constantly applying for water rights on this system. The state
at large is not only interested in protecting prior appropriators in their rights, but is interested
in the conservation of the waters of the stream system to the end that the largest possible
amount of land may be brought under cultivation through an economical diversion and use
of such waters.
diversion and use of such waters. To accomplish this beneficent object, the state has a right to
exercise a superintending control over the entire river system. It is not to be assumed that so
great and so important an undertaking cannot be fairly and intelligently administered. If so
administered, it would seem that it ought to be particularly advantageous to prior
appropriators. It is the history of irrigation in this and other states that the first appropriators
of waters upon the natural streams are frequently forced into long, vexatious, and expensive
litigation to protect their rights against subsequent appropriators. The case of Bliss v. Grayson
& Anderson in the state courts, involving water rights on the Humboldt River, and Miller &
Lux v. Rickey, et al., in the federal court, involving water rights on the Walker River, are
conspicuous examples, showing the need of some kind of intelligent state intervention. The
case of Bliss v. Grayson, begun in the district court of Humboldt County in July 1889,
reached the supreme court a decade later, with the result of a reversal and a new trial ordered.
(Bliss v. Grayson, 24 Nev. 422, 56 Pac. 231.)
[2] If it may be conceded that the relative rights of all water users upon a river system may
be ascertained by some lawful method of procedure, then no constitutional right can be said
to be infringed by a system of state control over the water of a river system such as is
provided in sections 52 to 56, inclusive, for such system is designed to protect all water users
in their rights. The courts of all the states that have adopted similar water laws have held the
same to be within the lawful exercise of the police power of the state. See authorities
hereinafter cited.
[3] In considering the constitutionality of section 18 to 51, inclusive, they should be
viewed with reference to the purpose designed to be accomplished by sections 52 to 56. The
latter sections are clearly administrative. Before they can be put into force, the relative rights
of water users upon a stream must be ascertained.
[4] It is contended here that the manner prescribed by the statute for the ascertainment
of these relative rights is violative of the constitution in that it amounts to a deprivation
of property rights, without due process of law; that it confers judicial powers upon an
executive officer; and that it invades the jurisdiction of the district courts.
by the statute for the ascertainment of these relative rights is violative of the constitution in
that it amounts to a deprivation of property rights, without due process of law; that it confers
judicial powers upon an executive officer; and that it invades the jurisdiction of the district
courts.
It cannot, we think, be said that the provisions of the act contemplate the deprivation of property without due
process of law. It should, we think, be assumed that water claimants or appropriators will present their claims
according to their respective rights, and it must be presumed, until the contrary appears, that a public officer will
perform his duties. The act contemplates the securing to water users their rights, not the taking of the same away.
The fact that human judgment is liable to err will not justify an assumption in advance that it will err in all or any
cases. Assuming, however, that errors will be made by the state engineer in determining the amount or time of an
appropriators' right, such right would not thereby be taken from the appropriator without due process of law. For
purposes of the state's exercise of its powers of administration, the enjoyment of such right may be affected,
temporarily at least, but only after a notice and a hearing. The right, however, to have the matter finally
adjudicated by the courts is not attempted to be taken away. Most water rights upon the streams of this state are
undetermined by any judicial decree or other record. While the right exists, it is undefined. For the state,
however, to administer such rights, it is necessary that they should be defined.
[5] For the purposes of administration, the act prescribes a method of notice and a hearing
that applies alike to all similarly situated. True, this is not a determination by a court, but
applicants are not for that reason deprived of property without due process of law. As said in
8 Cyc. 1084:
Although the due process of law implies generally the course of judicial proceedings
established at the time the constitution was framed, due process is not limited to such, but
refers also to many measures of a summary nature."
to such, but refers also to many measures of a summary nature.
This court in a few cases has had occasion to refer to the constitutional guaranty of due
process of law, but those cases were dealing with matters of court procedure; and, while
certain expressions were therein used which, taken literally, would seem to restrict the
meaning of due process of law to determinations by a court, no question was presented in
those cases as to whether the constitutional guaranty had any such restricted limitations.
Many cases may be found sustaining the authority of administrative officers or boards to
determine personal or property rights as not violative of due process of law.
In Black v. Glenn, 85 Kan. 735, 119 Pac. 67, 43 L. R. A. n. s. 1030, Ann. Cas. 1913a, 406,
the Supreme Court of Kansas said:
It has been held by the Supreme Court of the United States that the phrase due process of
law' does not necessarily mean a judicial proceeding. (McMillen v. Anderson, 95 U. S. 37, 24
L. Ed. 335.) On the other hand it does not necessarily mean a special tribunal created for the
express purpose of hearing the merits of the particular controversy. Where ample notice is
provided which gives to the property owner an opportunity to have a hearing in any court of
competent jurisdiction before his property is affected, he is afforded due process of law.
In Enterprise Irrigation District v. Tri-State Land Co., 138 N. W. 179, and in Farm
Investment Co. v. Carpenter, 9 Wyo. 110, 61 Pac. 258, 50 L. R. A. 747, 87 Am. St. Rep. 918,
the Supreme Courts of Nebraska and Wyoming held similar provisions in the water laws of
those states to be due process of law.
See, also, Wedemeyer v. Crouch, 68 Wash. 14, 122 Pac. 366, 43 L. R. A. n. s. 1090;
Louisville & N. R. Co. v. Garrett, 231 U. S. 298, 34 Sup. Ct. 48; San Diego L. & T. Co. v.
National City, 174 U. S. 739, 19 Sup. Ct. 804, 43 L. Ed. 1154; Spring Valley Water Works v.
San Francisco, 82 Cal.
Cal. 296, 22 Pac. 910, 6 L. R. A. 756, 16 Am. St. Rep. 116; Meyers v. Shields, 61 Fed. 713;
Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565; Klafter v. State Board of Examiners of
Architects, 259 Ill. 15, 102 N. E. 193, 46 L. R. A. n. s. 532, Ann. Cas. 1914b, 1221; Stettler v.
O'Hara, 139 Pac. 743.
The provisions of the act in question do not violate the due process of law provisions of
the state or federal constitutions.
[6] It is contended that these provisions of the statute are in violation of article 3 of the
state constitution. Considering this article, this court in Sawyer v. Dooley, 21 Nev. 390, 396,
32 Pac. 437, 439, speaking through Bigelow, J., said: That article divides the state
government into three great departments, and directs that no person charged with the
exercise of powers properly belonging to one of these departments shall exercise any
functions appertaining to either of the others, except in the cases herein expressly directed or
permitted.' As will be noticed, it is the state government, as created by the constitution, which
is divided into departments. These departments are each charged by other parts of the
constitution with certain duties and functions, and it is to these that the prohibition just
quoted refers. For instance, the governor or the judiciary shall not be members of the
legislature, nor shall they make the laws under which we must live. But this is quite a
different thing from saying that no member of the executive or judicial departments shall
exercise powers in their nature legislative, but which are not particularly charged by the
constitution upon the legislative department; such as where the board of commissioners for
the insane makes rules for the management of the asylum, or a court establishes rules for the
transaction of the business coming before it. It would be impossible to administer the state
government were the officers not permitted and required, in many instances, to discharge
duties in their nature judicial, in that they must exercise judgment and discretion in
determining the facts concerning which they are called upon to act, and in construing the
laws applicable to them.
which they are called upon to act, and in construing the laws applicable to them. * * * This
construction is supported by two well-considered cases decided by the Supreme Court of
California (People v. Provines, 34 Cal. 520; Staude v. Commissioners, 61 Cal. 313), where
the matter will be found elaborately discussed. See, also, Story, Const. sec. 525, and Mayor v.
State, 15 Md. 376, 455, 74 Am. Dec. 572.
In State v. State Bank and Trust Co., 31 Nev. 456, 103 Pac. 407, 105 Pac. 567, we held
that the state banking law providing that, if the bank commissioners, either from the report of
the bank examiner, or from their own knowledge, decide that it is unsafe for any such
corporation to continue to transact business, they shall authorize the bank examiner to take
such control of such corporation, and to hold possession of the same until the order of the
court thereafter to be obtained, did not confer judicial powers upon an executive board in
violation of the constitution. See, also, State, ex rel. Williams, v. District Court, 30 Nev. 225,
94 Pac. 70. This identical question has been considered by the supreme courts of two states
having similar laws, and from which many of the provisions of our statute have been copied.
(Farm Investment Co. v. Carpenter, 9 Wyo. 110, 61 Pac. 258, 50 L. R. A. 747, 87 Am. St.
Rep. 918; Crawford Co. v. Hathaway, 67 Neb. 325, 367, 93 N. W. 781, 60 L. R. A. 889, 108
Am. St. Rep. 647; McCook Irrigation & W. P. Co., v. Crews, 70 Neb. 115, 102 N. W. 249;
Enterprise Irr. District v. Tri-State Land Co., 92 Neb. 121, 142, 138 N. W. 171, 178.)
In Enterprise Irrigation District v. Tri-State Land Co., supra, the Nebraska court says: In
the face of these decisions, it hardly seems necessary to again consider the question, but we
have done so, and have examined further authorities. It is a matter of common knowledge
that, both in the administration of the laws of the United States and of the several states,
boards of individuals, for the purpose of exercising executive or administrative functions, are
often compelled to inquire into and determine questions requiring the exercise of powers
judicial in their nature. Some of such determinations are often, by virtue of the statutes
defining the functions and power of the tribunal, final and decisive, and others are made
reviewable by appeal to the courts.
by virtue of the statutes defining the functions and power of the tribunal, final and decisive,
and others are made reviewable by appeal to the courts. * * * Whether reviewable by the
courts or not, the exercise of such powers by tribunals of this nature has seldom been held to
be a violation of the constitution in this respect. (McGhee, Due Process of Law, 162, 368;
Reetz v. Michigan, 188 U. S. 505, 23 Sup. Ct. 390, 47 L. Ed. 563; Gardner v. Bonestell, 180
U. S. 362, 21 Sup. Ct. 399, 45 L. Ed. 574; Bates & Guild Co. v. Payne, 194 U. S. 106, 24
Sup. Ct. 595, 48 L. Ed 894; People, ex rel. Deneen, v. Simon, 176 Ill. 165, 52 N. E. 910, 44 L.
R. A. 801, 68 Am. St. Rep. 175; Farm Investment Co. v. Carpenter, 9 Wyo. 110, 61 Pac. 258,
50 L. R. A. 747, 87 Am. St. Rep. 918; State v. Thorne, 112 Wis. 81, 87 N. W. 797, 55 L. R.
A. 956; Gee Wo v. State, 36 Neb. 241, 54 N. W. 513; Lincoln Medical College v. Poynter, 60
Neb. 228, 82 N. W. 855.) We are satisfied with the conclusion reached by this court in the
cases cited, which were followed by Farmers' Canal Co. v. Frank, 72 Neb. 136, 100 N. W.
286, and see no reason to change our conclusion in this respect.
In Farm Investment Co. v. Carpenter, supra, the Supreme Court of Wyoming, considering
this question, said: The statute nowhere attempts to divest the courts of any jurisdiction
granted to them by the constitution to redress grievances and afford relief at law or in equity
under the ordinary and well-known rules of procedure. A purely statutory proceeding is
created to be set in motion by no act or complaint of any injured party, but which in each
instance is to be inaugurated by order of the boarda proceeding which is to result, not in a
judgment for damages to a party for injuries sustained, nor the issuance of any writ or process
known to the law for the purpose of preventing the unlawful invasion of a party's rights or
privileges, but the finality of the proceeding is a settlement or adjustment of the priorities of
appropriation of the public waters of the state, and is followed by the issuance of a certificate
to each appropriator showing his relative standing among other claimants, and the amount of
water to which he is found to be entitled.
entitled. * * * The supervision of the board affects the water of natural streams, the title to
which, while flowing in its accustomed channels, remains in the state or public, and of such a
peculiar character that public control is demanded to insure its orderly, economical, and fair
distribution. The determination required to be made by the board is, in our opinion, primarily
administrative rather than judicial in character. The proceeding is one in which a claimant
does not obtain redress for an injury, but secures evidence of title to a valuable righta right
to use a peculiar public commodity. That evidence of title comes properly from an
administrative board, which, for the state in its sovereign capacity, represents the public, and
is charged with the duty of conserving public as well as private interest. The board, it is true,
acts judicially, but the power exercised is quasi-judicial only, and such as, under proper
circumstances, may appropriately be conferred upon executive officers or boards.
In Speer v. Stephenson, 16 Idaho, 707, 102 Pac. 365, the Supreme Court of Idaho,
considering the provisions of the Idaho statute providing for a contest of a permit issued by
the state engineer and vesting power in that officer to cancel such permit, and providing for
an appeal to the district court from an order of the state engineer revoking or refusing to
revoke such permit, said: By this statute, where a permit has been granted by the state
engineer, permission is also granted to any person holding a permit post-dated to present
facts, showing that the holder of the permit has not complied with the law, and authorizes the
state engineer, if he finds that the law has not been complied with, to cancel such permit. This
is purely a ministerial duty connected with the administration of the law as it is imposed upon
the state engineer. A very exhaustive discussion of this question may be found in the case of
Farm Investment Co. v. Carpenter, 9 Wyo. 110, 61 Pac. 258, 50 L. R. A. 747, 87 Am. St.
Rep. 918. See, also, Ewing v. Mining Co., 56 Cal.
Cal. 649. Many other authorities might be cited which deal with the power exercised by an
officer in the administration of his office, but we believe the true rule to be that when a
ministerial officer is called upon to decide and determine matters arising in the administration
of his office, when such acts are not made final or binding upon the courts of the state, and
full opportunity is given to any person aggrieved to have such matters adjudicated in the
proper tribunals of the state, the acts of such officer are ministerial, and not judicial.
See, also Waha-Lewiston L. & W. Co. v. Lewiston Sweetwater Irrigation Co. (C. C.) 158
Fed. 137; In Re Silvies River (D. C.) 199 Fed. 495, 501.
The soundness of the reasoning in the Wyoming and Nebraska decisions holding that the
rulings of the state engineer or water board, as the case may be, are primarily administrative,
and quasi-judicial only, has been questioned by Wiel and Kinney, text-writers on the subject
of water law. If the question were before us, unsupported by the decisions of at least two
courts, we might be disposed to give more weight to the reasoning advanced by these
text-writers and the arguments of counsel supporting the contention that certain provisions of
the act are void because vesting judicial powers in an executive officer in violation of the
constitution. In a consideration of a question of this kind, however, courts must be governed
by rules of construction. It is a fundamental rule that all presumptions are in favor of
legislative enactments. Another well-settled rule is that a mere doubt as to whether a statute is
violative of a constitutional provision must be resolved in favor of the statute. In the face of
the decisions of the courts of two states, which courts have given extensive and repeated
consideration to the question, it would be almost presumptuous for a court of a state which
has adopted these statutory provisions from the laws of such states, after they had been
construed by the highest courts of those states, to say, notwithstanding, that they are
unconstitutional beyond all reasonable doubt. The decisions of the Supreme Court of Idaho
on an analogous question and the decisions of federal courts, hereafter quoted from,
support the view taken by the Wyoming and Nebraska decisions.
Supreme Court of Idaho on an analogous question and the decisions of federal courts,
hereafter quoted from, support the view taken by the Wyoming and Nebraska decisions.
The line between acts of executive officers which are essentially judicial and those which
are administrative rather than judicial, although quasi-judicial, is not always easy to draw.
Some courts have adopted a more liberal rule than is applied by other courts in determining
such questions. The decisions of this court would seem to follow the more liberal
constructions.
We think the court below properly held that the provisions of the act in controversy were
not violative of the provisions of the constitution regulating the distribution of the powers of
state government.
[7] The court below, however, held certain provisions of the act violative of section 6 of
article 6 of the constitution, which provides:
The district courts in the several judicial districts of this state shall have original
jurisdiction in all cases in equity; also, in all cases at law, which involve the title of the right
of possession to, or the possession of real property. * * * They shall also have final appellate
jurisdiction in cases arising in justices' courts, and such other inferior tribunals as may be
established by law.
We think the court below was in error in so holding. The determinations made by the state
engineer of the relative rights of water users upon a stream are not made in cases in equity
or cases at law, as those terms are used in the constitutional provision quoted, supra.
As said in Farm Investment Co., supra: In an earlier part of this opinion we had occasion
to allude to some of the particulars wherein the statutory proceeding differs from an ordinary
suit in the courts. Affirmative relief in favor of one party as against another is not its object.
Adversary pleadings, as they are commonly employed and understood, are not involved.
Indeed, in the strict sense, except in case of contest, it is doubtful if the various claimants
can be regarded as adversaries."
sense, except in case of contest, it is doubtful if the various claimants can be regarded as
adversaries.
In dealing with an analogous situation, involving an appeal to the district court from the
action of the state engineer of Idaho, revoking a water permit, under the provisions of the
Idaho statute, and a removal of the matter on appeal to the Circuit Court of the United States
for the District of Idaho, Judge Dietrich, in denying a motion to remand, said: The
proceedings prescribed by the Idaho statutes to be taken before and by the state engineer are
essentially nonjudicial in their character, and are purely administrative, and in no sense do
they constitute a suit at law or in equity. * * * The state engineer's proceedings are ex parte,
and are neither in form nor substance judicial in their nature. The legislature may have
contemplated that in some, if not many, instances licensees would not resist cancellation of
permits, and that the proceedings before and by the engineer would furnish a simple and
inexpensive mode for formally and publicly declaring the termination of the licenses, and of
clearing the public record of an apparent, though nonexistent, right. In case, however, the
holder of the permit has not abandoned his right, and claims that the same is not forfeited,
having notice of the action of the state engineer, he may institute a judicial inquiry. Other
modes might have been provided for instituting the action, but the legislature in its wisdom
saw fit to call the proceedings an appeal.' Whether the means and method prescribed are
sufficient to enable the state court to acquire jurisdiction of the parties is not a question now
under consideration. It simply need be said that the legislature intended and attempted to
confer jurisdiction upon a judicial tribunal, and whether its intention in that regard has been
rendered effectual is for the court in which such question is raised, be it state or federal, to
determine. (Waha-Lewiston L. & W. Co. v. Lewiston Sweetwater Irrigation Co., supra.)
In Re Silvies River, 199 Fed. 501, Bean, District Judge, speaking for the Circuit Court of
the United States, District of Oregon, said:
speaking for the Circuit Court of the United States, District of Oregon, said:
The phrase suits at common law and in equity' embraces not only ordinary actions and
suits, but includes all the proceedings carried on in the ordinary law and equity tribunals, as
distinguished from proceedings in military, admiralty, and ecclesiastical courts. It is a very
comprehensive term, and is understood to apply to any proceedings in a court of justice by
which an individual pursues a remedy which the law affords. Modes of proceeding may vary,
but, as it affects the right of removal, any civil proceeding in a state tribunal in which a
judgment or decree is sought as to the rights of the parties and presented by the pleadings for
judicial determination is an action or suit within the meaning of the statute, regardless of the
forum or tribunal before which the matter is pending. (Weston v. City Council of Charleston,
2 Pet. 449-464, 7 L. Ed. 481; Gaines v. Fuentes, 92 U. S. 10, 23 L. Ed. 524.) And the state
cannot, by creating special proceedings or special tribunals, deprive the federal court of
jurisdiction of such a suit or prevent a removal. (In Re The Jarnecke Ditch, 69 Fed. 161.) But
a proceeding carried on by or before executive or administrative officers in the exercise of
their proper functions cannot be regarded as a suit or action, although it may become such on
appeal to a court having power to determine questions of law and fact, either with or without
a jury, and where there are parties litigant to contest the case on one side or the other.
(Upshur Co. v. Rich, 135 U. S. 467, 10 Sup. Ct. 651, 34 L. Ed. 196; Waha-Lewiston L. & W.
Co. v. Lewiston Sweetwater I. Co., 158 Fed. 137.)
Now the preliminary proceedings before the state board of control, in taking testimony
and making findings of fact concerning the rights of the various claimants to the waters of a
given stream, are, in my judgment, not judicial, but rather administrative. The powers of the
board are not brought into action by the filing of a paper in the nature of a complaint setting
up asserted rights, but by the mere presentation to it of a petition or request by one or
more users of water, without any allegations of issuable facts, other than that the
petitioner is a water user on the stream, and a request for the determination of the
relative rights of the various claimants to such waters.
but by the mere presentation to it of a petition or request by one or more users of water,
without any allegations of issuable facts, other than that the petitioner is a water user on the
stream, and a request for the determination of the relative rights of the various claimants to
such waters. No affirmative relief is asked, and no adverse pleadings are required or
permitted, or issues joined, until after the evidence taken by the board is open to the
inspection of the various claimants and owners. After the filing of the petition, the
proceedings are to be conducted by the board and upon its initiative. Neither the petitioner
nor the claimants obtain any redress for an injury as the result of such proceedings, but merely
evidence of their title or right to the use of the water. It is true the board is vested with power
to issue notice to the various claimants requiring them to present their claims, to take
testimony and make findings of fact, but these findings must be confirmed by the court. The
board has no power to make an adjudication of the rights of the claimants. Its duty is to
ascertain the facts and present them to the court for its consideration. After the evidence and
determination of the board has been filed with the court, the proceeding probably becomes a
suit or action, but, until the board has completed its examination, made its determination, and
filed its report, the proceedings are purely administrative.
In so far as the board has jurisdiction over the adjudication of water rights, it is in effect a
standing examiner, created by the state, charged with the duty, when requested by the users of
water, of examining into and reporting to the court the facts on which the rights of the various
claimants are based, so that such rights may be authoritatively settled and determined by a
judicial tribunal. Until the report is made and filed with the court, there is no action or suit
within the meaning of the removable statute.
The Oregon law under consideration by the federal court in the Silvies River case, supra,
differs from the Nevada, Wyoming, and Nebraska laws in that, after the board of control,
under the Oregon statute, "has entered of record in its office an order determining and
establishing the several rights to the waters of the stream," it is the duty of the board to
transmit the original evidence and a certified copy of its determination to the clerk of the
circuit court of the county in which said stream or some part thereof is situated, where
the whole matter will be heard by the court, both as to the determinations made by the
board where there has been no contest and where there has been a contest.
board of control, under the Oregon statute, has entered of record in its office an order
determining and establishing the several rights to the waters of the stream, it is the duty of
the board to transmit the original evidence and a certified copy of its determination to the
clerk of the circuit court of the county in which said stream or some part thereof is situated,
where the whole matter will be heard by the court, both as to the determinations made by the
board where there has been no contest and where there has been a contest. It is provided,
however, that: Pending the consideration of the matter by the court, the findings of the board
shall be in force and effect, unless stayed by the giving of a bond as provided in the act.
And further that: During the time the hearing of the order of the board of control is
pending in the circuit court, and until a certified copy of the judgment, order, or decree of the
circuit court is transmitted to the board of control, the division of water from the stream
involved in such appeal shall be made in accordance with the order of the board. (Silvies
River Case, supra, 199 Fed. 499; Wattles v. Baker County, 59 Or. 255, 117 Pac. 417; Lord's
Oregon Laws, secs. 6648, 6652.)
In practical effect, there is little difference between the Oregon statute and the Nevada,
Wyoming, and Nebraska statutes. Both in Oregon and the other three states mentioned, the
findings of the state engineer or water board are in force and effect until stayed or set aside by
the court. The Oregon statute requires the court to adjudicate the relative rights of all water
users, whether there is any dispute as to the determination of the water board or not, and this
adjudication is initiated by the state itself. Under the laws of the latter states, parties
contesting must initiate an adjudication by the courts, and only those cases go before the court
where there is an actual controversy. In cases where the parties are satisfied with the
determination made by the water officials, it may be possible that the subsequent adoption
and approval of a court gives to such determinations a more binding effect in the nature of a
judicial decree, but, for the practical purposes of the administration of the flow of the
stream by the state's administrative officers, there is no difference either as to those
officers or to the water claimants.
binding effect in the nature of a judicial decree, but, for the practical purposes of the
administration of the flow of the stream by the state's administrative officers, there is no
difference either as to those officers or to the water claimants.
It is unnecessary to consider other constitutional questions raised by counsel in these cases,
for they are not essential to a determination of the cases before us. Courts as a rule will not
determine such questions, except as is necessary to completely dispose of the cases as
presented.
[8] In so far as the law authorizes the state engineer to investigate and determine the
relative rights of water appropriators or users upon any stream or stream system, or requires
statements to be made by the several claimants of their respective claims, and requires such
claimants to support the same with proofs, and authorizes the state engineer to determine
contests, or authorizes the state engineer or other executive officers to control the distribution
of the waters of a stream to the persons found to be entitled thereto, the law is valid.
[9] It will be time enough to consider other questions when they shall arise in a specific
case, such as whether the determinations made by the engineer have any force other than as
being controlling for purposes of the administration of the law, until modified, suspended, or
set aside by some order or decree of court, or whether the methods prescribed for appeal from
the decisions of the state engineer in cases of contest are valid, and, if so, whether such
appeals are merely a continuation of those proceedings in an appellate tribunal, as held by
the Wyoming court in Willey, et al., v. Decker, et al., 11 Wyo. 548, 73 Pac. 210, 100 Am. St.
Rep. 939, or become in the nature of a case at law or in equity, as would seem to be the view
of the Nebraska, Idaho, and federal courts, which have had occasion to consider the question.
Nor need we now consider whether the ordinary rights of action are at all affected by the
prescribe methods of appeal. Whether that portion of section 25, providing that a failure to
present a claim in time shall be given a later priority than those claimants who have filed
in time, and other provisions not affecting the essential features of the general scheme of
the act, will be determined only when a case arises making it necessary to determine such
questions.
that a failure to present a claim in time shall be given a later priority than those claimants who
have filed in time, and other provisions not affecting the essential features of the general
scheme of the act, will be determined only when a case arises making it necessary to
determine such questions.
[11] It is contended that under the provisions of section 84, quoted supra, none of the
other provisions of the act were intended to apply to water rights acquired prior to the
adoption of the act; in other words, that the scheme of state control over the diversion of
water to parties entitled thereto was to apply only to subsequent appropriations. We think the
section is not subject to such construction. The section must be construed in connection with
other provisions of the act. The whole scope and purpose of the act show that it was intended
to apply to all water rights, whether acquired before or after its adoption. There would be
little or no use in attempting state control over a stream or stream system unless all water
rights were brought under that control. The greater portion of the water rights upon the
streams of the state were acquired before any statute was passed prescribing a method of
appropriation. Such rights have uniformly been recognized by the courts as being vested
under the common law of the state. Nothing in the act shall be deemed to impair these vested
rights; that is, they shall not be diminished in quantity or value. As they are all prior in time to
water rights secured in accordance with later statutory provisions, such priorities must be
recognized. As before stated in this opinion, while these rights exist and must be recognized
and upheld, in the majority of cases, they are undefined. It is made the duty of the owners of
such rights to present their claims and to support the same by proofs, in order that such rights
may be determined for administrative purposes under the act. The act contemplates that the
state engineer shall determine the same for such administrative purposes in accordance with
the actual facts, and it is to be presumed, until the contrary is shown, that he will so
determine such rights.
will so determine such rights. The act gives the state engineer no discretion to award an
appropriator a less amount of water than the facts show he is entitled to, or to give him a later
relative priority. True, as before stated, the state engineer may err in his determination, but, if
so, the claimant has his remedy in the courts. Appropriations made in pursuance of the
provisions of prior statutes are not to be impaired or affected. Rights thus secured are
supported by documentary evidence and are to be recognized accordingly. See Lord's Oregon
Laws, sec. 6595.
[11] It is not an unlawful interference with the vested rights of water appropriators to so
control those rights that each may have what belongs to him, but that he may not voluntarily,
whether through a mistaken conception of his rights or not, interfere with the rights of others.
(Irrigation Co. v. Water S. & S. Co., 29 Colo. 474, 68 Pac. 781.)
A question has been raised as to whether the proceeding in prohibition (Case No. 2107)
was an appropriate remedy, but, as that proceeding must be dismissed in any event, we will
not consider that question. In case No. 2107 the proceeding is dismissed.
The district court is directed to modify the temporary injunction so as to only restrain the
state engineer from making determinations which would in any way impair vested rights.
Opinion of Talbot, C. J.:
I concur in the orders.
How far may the state engineer proceed under the act of 1913, creating the water law? To
what extent are the provisions of that statute constitutional? The act purports to authorize this
officer, by detailed procedure, to determine the relative rights of water users, and subject to
rehearings and appeals to make his determinations conclusive and to empower him to
administer and regulate the use of water in accordance with such determinations.
Section 87 of the water law provides: Each section of this act and every part of each
section is hereby declared to be independent sections, and parts of sections, and 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 any part thereof.
From this it appears that the legislature may have been in doubt as to the validity of certain
parts of this statute.
[1] Under the decisions of this court, it has long been settled that, if a section or a part of a
section is unconstitutional, this will not prevent the enforcement of the remainder of the act.
If the legislature has attempted to confer upon the state engineer the power to determine water
rights for the purposes of his regulation and control of the use of the water and of having a
final adjudication of those rights, and if under the constitution the latter power can be
executed only by the courts, or if it be conceded that he has no right to make a final
adjudication of the relative water rights, there is no good reason why he may not be allowed
to make the determination for administrative purposes.
[2] It is well settled that the state may inspect, regulate, and exercise a superintending
control over various kinds of business and property. Statutes regulating the hours of labor in
underground mines and in smelters, quartz mines, and ore-reduction plants have been
sustained. Laws providing for factory inspectors and for safety appliances in mines and
factories and on railroads, and regulating transportation of passengers, freight, and live stock,
are no longer questioned. Statutes regarding headlights, safety couplers, and train crews are
illustrations. Laws providing that payment for the mining of coal should be made upon the
basis of weight after it has been screened have been sustained by the Supreme Court of the
United States. Other statutes forbid the polluting of streams, running of water upon highways,
and the speeding of automobiles. For administrative purposes, bank, railroad, and public
service commissions may often act judicially and investigate, have hearings, and determine
facts to guide them for the purpose of fixing rates and exercising their control, but their
determinations are not conclusive against the adjudications of the courts.
have hearings, and determine facts to guide them for the purpose of fixing rates and
exercising their control, but their determinations are not conclusive against the adjudications
of the courts.
It has now come to be generally recognized that under our free government, with all its
constitutional guaranties, statutes passed for the public benefit, to meet the new conditions
which arise, will be sustained and enforced, although they affect private property or limit the
right of contract.
[3] As in these arid regions water is most essential for the support of agriculture, one of the
greatest industries of the commonwealth, and by reason of its nature the regulation of its use
and the limitation of appropriators to the amount to which they are entitled and need for
beneficial purposes is of prime importance, no good reason is apparent why the people's
representatives in the legislature assembled may not in behalf of the public welfare pass laws
to regulate its use, as is done in other intermountain states and with other property and
business pursuits. To this end the state engineer may proceed in the manner directed by the
statute to obtain the best evidence to be had, whether judgment, documentary, or oral, and to
carefully and accurately determine the relative rights of water users. Any valid judgments
previously rendered regarding these rights are binding upon him as well as upon the courts.
Can his determinations have the force of final adjudications? It is provided by the
constitution:
Article 6Judicial Department
Section 1. The judicial power of this state shall be vested in a supreme court, district courts, and in justices
of the peace. The legislature may also establish courts, for municipal purposes only, in incorporated cities and
towns.
Section 44 of the water law provides: The final orders or decrees of the state engineer, in
the proceedings provided by law for the adjudication and determination of rights to the use
of the waters in this state, shall be conclusive to all prior appropriations, and the rights of
all existing claimants upon the stream or other body of water lawfully embraced in the
adjudication, subject, however, to the provisions of law for appeals, rehearings, and for
the reopening of the orders or decrees therein."
rights to the use of the waters in this state, shall be conclusive to all prior appropriations, and
the rights of all existing claimants upon the stream or other body of water lawfully embraced
in the adjudication, subject, however, to the provisions of law for appeals, rehearings, and for
the reopening of the orders or decrees therein.
By this section it is attempted to make the determination of the state engineer a final
adjudication, if there is no rehearing or appeal, but it is not apparent that the constitution will
allow it to have that effect, for if such determination could be a conclusive adjudication as the
statute states, even if there is no rehearing or appeal, it would in effect be giving the force of a
judgment to the determination of the state engineer and have the effect of conferring judicial
power upon him, something the constitution does not permit when it provides that the judicial
power of the state shall be vested in the supreme court, district courts, and justices of the
peace and courts established for municipal purposes only. With the judicial power of the state
limited by the constitution to these courts, the judges of which are required by the constitution
to be elected, it would seem that the legislature cannot invest the state engineer, or any
appointive or administrative officer, with the judicial power of finally adjudicating vested
rights to water. If the legislature could give the state engineer power to make final
adjudications of water rights, it could authorize him, or some other appointive officer, to
make final adjudications of the right to mines, lands, and other property and claims, and
divest the courts of the jurisdiction given them by the constitution, or, if appeal be nominally
allowed to the courts, hedge it about with such expensive and burdensome restrictions as to
place it beyond the reach of ordinary litigants.
As the constitution limits the judicial power in this state to the supreme court, district,
justice, city, and municipal courts, it follows that it does not provide for an appeal to the
district court from the decision of any tribunal not mentioned in that document. The fact that
the statute provides for an appeal cannot make the determination of the state engineer
binding as a final adjudication of water rights or endow him with judicial power to make a
final determination of rights, when the constitution directly limits that power to the
courts specified.
the statute provides for an appeal cannot make the determination of the state engineer binding
as a final adjudication of water rights or endow him with judicial power to make a final
determination of rights, when the constitution directly limits that power to the courts
specified. The constitution of the United States provides that: The judicial power of the
United States, shall be vested in one supreme court, and in such inferior courts as the
Congress may from time to time ordain and establish. (Article 3, sec. 1.)
If there were a provision in the state constitution authorizing the legislature to establish
other courts at its discretion, and provision had been made by statute for a special tribunal to
determine the rights of water users, a very different question might be presented. Various
provisions in relation to courts are found in the organic acts of different states. Upon the
adoption of our state constitution, probate courts, which were permitted under the territorial
government, were no longer allowed, and the jurisdiction they exercised was transferred to
the district court. Decisions in Wyoming and other states having different constitutional and
statutory specifications can have but little bearing upon this question.
It being concluded that the state engineer may take evidence and determine water rights for
administrative purposes, and that his determinations are not binding as final adjudications,
even if no appeal from them be taken, the further question arises as to whether, on the same
theory that banks, railroads, and public service corporations are controlled, the state engineer,
with the assistance of the duly appointed water commissioner, may allow, restrict, and
regulate the use of the water claimed under vested rights without impairing them, in
accordance with his determinations, subject to the right of any water user who may feel
aggrieved thereby to apply to the courts to restrain the state engineer or the water
commissioner from depriving the appropriator of any water to which he may be entitled. If
the parties, or any of them, desire to have this question determined, it may be suggested
that counsel present their views regarding the same in a petition for a rehearing or
answer thereto.
of them, desire to have this question determined, it may be suggested that counsel present
their views regarding the same in a petition for a rehearing or answer thereto. The case is of
unusual importance, and, if this question is to be determined, it should be given due
consideration.
McCarran, J., concurring in the order in Case No. 2115; dissenting in Case No. 2107:
I concur in the order, as made applicable to case No. 2115, entitled Anderson, et al., v.
Wm. M. Kearney, in so far as its force extends, but, inasmuch as it only partially affirms the
order of the lower court, I contend that it should go farther to the extent of a complete
affirmance of that order. But it must not be understood that I concur in the opinion leading up
to the order made.
The question of the constitutionality of the several sections of the water law of 1913 was,
in my judgment, submitted to this court for its interpretation and decision.
Under the notices published by the engineer and served upon the several claimants, as set
forth in case No. 2115, the engineer sought to proceed to the determination of relative rights,
and therein he sought to conduct his proceedings under provisions of the several sections
contained in the water law of 1913, and which were directly questioned in the lower court and
directly questioned in this court, and I hold that it was our duty to meet those questions
squarely and answer them, inasmuch as they were directly involved.
I dissent from the order dismissing the proceedings in case No. 2107, entitled Ormsby
County, et al., v. Kearney. An order, at least equal in effect to that made in case 2115, should
have been made in case 2107.
An opinion, which follows, presents my reasons for dissenting from the order as made in
case No. 2107 and my reasons for concurring in the order so far as made in case No. 2115,
also my reasons for contending that the order made in the latter case should extend farther
and be more comprehensive.
The appeal in case No. 2115 is from an order of the district court of Humboldt County,
refusing an order to vacate a temporary injunction granted by that court against
appellant, as the state engineer of the State of Nevada.
district court of Humboldt County, refusing an order to vacate a temporary injunction granted
by that court against appellant, as the state engineer of the State of Nevada. The respondents
in this action, plaintiffs in the court below, assert the appropriation and application to a
beneficial use of certain waters of the Humboldt River, between the years 1874 and 1902. It is
also asserted by respondents in their complaint that they and their grantors have continuously,
and ever since said water was first diverted from the Humboldt River, used the same for the
purpose of irrigation of their lands lying along and adjacent to the Humboldt River, and that
the waters have been used for the watering of stock and domestic purposes. They allege that
the plaintiffs, and each of them, and their grantors, and each of them, appropriated a quantity
of water so diverted and applied, and that the appropriation became, was, and is a vested
property right.
On the 21st day of May, 1913, W. M. Kearney, as state engineer of the State of Nevada,
caused to be served upon respondents, and also caused to be published in local newspapers,
the following notices:
State of Nevada.
In the Office of the State Engineer.
In the Matter of the Adjudication of the Rela-
tive Rights to the Waters of the Hum-
boldt River and Its Tributaries.
Order.
It appearing to me, W. M. Kearney, state engineer of the State of Nevada, from an
investigation made of the Humboldt River and its tributaries, one of the most important
stream systems in the State of Nevada, that the relative rights to the use of water of the
various claimants upon the said Humboldt River and its tributaries in the counties of
Humboldt, Lander, Eureka, and Elko, State of Nevada, should be determined: Now, therefore,
it is hereby ordered, that the Humboldt River and its tributaries, situated within the counties
of Humboldt, Lander, Eureka, and Elko, State of Nevada, is hereby selected for the
determination of relative rights to the use of water of the various claimants thereon.
use of water of the various claimants thereon. It is further ordered, that the proceedings for
the determination of the relative rights to the waters of the said Humboldt River and its
tributaries, situate in Humboldt, Lander, Eureka, and Elko Counties, State of Nevada, shall
begin on the 26th day of May, A. D. 1913. All claimants to rights in the waters of said stream
system are required to make proof of their claims in the manner prescribed by law.
Dated and entered at Carson City, State of Nevada, this 21st day of May, 1913.
[Signed] W. M. Kearney,
[Seal.] State Engineer.
Notice of Order and Proceedings to Determine
Water Rights Before the State
Engineer of Nevada.
In the Matter of the Determination of the Rela-
tive Rights to the Waters of the Hum-
boldt River and its Tributaries.
To whom it May Concern: You are hereby notified that the state engineer will begin the
proceedings for the determination of the relative rights to the waters of the Humboldt river
and its tributaries, situate in Humboldt, Lander, Eureka, and Elko Counties, State of Nevada,
on the 26th day of May, A. D. 1913. All claimants to rights in the waters of said stream
system are required to make proof of their claims in the manner prescribed by law.
By order of the state engineer.
W. M. Kearney, State Engineer.
Dated at Carson City, Nevada, this the 21st day of May, A. D. 1913.
The notices heretofore set forth were given by the state engineer, pursuant to the act of the
legislature of the State of Nevada, approved March 22, 1913.
It is the contention of respondents, plaintiffs in the court below, that sections 18, 19, 20,
21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45,
46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57,and 58 of said act, and each of said sections,
are unconstitutional: First, as being in violation of the fourteenth amendment to the
constitution of the United States; second, as being in violation of article 1, sec.
said act, and each of said sections, are unconstitutional: First, as being in violation of the
fourteenth amendment to the constitution of the United States; second, as being in violation
of article 1, sec. 8, of the constitution of the State of Nevada, and article 3, sec. 1, article 4,
sec. 20, article 4, sec. 21, article 6, sec. 1, and article 6, sec. 6 of the constitution of the State
of Nevada.
The act in question starts out by declaring that the water of all sources of water supply
within the boundaries of the state, whether above or beneath the surface of the ground, belong
to the public.
Section 2 is: Subject to existing rights, all such water may be appropriated for beneficial
use as provided in this act and not otherwise.
Sec. 3. Beneficial use shall be the basis, the measure and the limit of the right to the use
of water.
The act proceeds by providing for standards of measurement, creating the office of state
engineer, maximum amount of water to be allowed, and prescribing the duties of the state
engineer and his assistant.
Section 18 prescribes as follows: Upon a petition to the state engineer, signed by one or
more water users of any stream or stream system, requesting the determination of the relative
rights of the various claimants to the waters thereof, it shall be the duty of the state engineer,
if upon investigation he finds the facts and conditions justify it, to enter an order granting said
petition and to make proper arrangements to proceed with such determination; provided,
however, that it shall be the duty of the state engineer, in the absence of such a petition
requesting a determination of relative rights, to enter an order for the determination of the
relative rights to the use of water, of any stream selected by him; commencing on the streams
in the order of their importance for irrigation. As soon as practicable, after said order is made
and entered, it shall be the duty of the state engineer to proceed with such determination as
hereinafter provided. A water user upon or from any stream or body of water shall be held
and deemed to be a water user upon the stream system of which said stream or body of
water is a part or tributary."
a water user upon the stream system of which said stream or body of water is a part or
tributary.
Section 19 provides for the preparing of notices, setting forth that all claimants to rights in
the waters of the stream system to be determined are required to make proof of their claims.
The section further provides: Which notice shall be published for a period of four
consecutive weeks in one or more newspapers of general circulation within the boundaries of
said stream system.
Section 20 provides for the making of investigation by the state engineer, such
investigation to be with reference to ditches diverting waters and the lands irrigated
therefrom.
Section 22 provides: Upon the filing of such measurements, maps and determinations, the
state engineer shall prepare a notice setting forth the date when the said state engineer is to
commence the taking of said proofs, as to the rights in and to the waters of said stream
system, and the date prior to which the same must be filed; provided, however, that the date
set prior to which said proofs must be filed shall not be less than sixty days from the date set
for the commencement of the taking of said proofs, which notice shall be deemed to be an
order of the state engineer as to its contents, and which notice the state engineer shall cause to
be published for a period of four consecutive weeks in one or more newspapers of general
circulation within the boundaries of the said stream system, the date of the last publication of
said notice to be not less than fifteen (15) days prior to the date fixed for the commencement
of the taking of proofs by the said state engineer. At or near the time of the first publication of
said notice it shall be the duty of the said state engineer to send by registered mail to each
person, or deliver to each person, in person, hereinafter designated as claimant, claiming
rights in or to the waters of said stream system, in so far as such claimants can be reasonably
ascertained, a notice equivalent in terms to the said published notice setting forth the date
when the said state engineer will commence the said taking of proofs, and the date prior to
which said proofs must be filed with the state engineer.
the date prior to which said proofs must be filed with the state engineer. Said notice must be
mailed at least thirty (30) days prior to the date fixed for the commencement of the taking of
said proofs.
Section 23 deals with the question of the state engineer mailing to claimants certain
printed forms for proofs.
Section 24 provides for the making of such statements by the claimants under oath.
Section 25 is as follows: It shall be the duty of the state engineer to commence the taking
of proofs on the date fixed and named in the notice provided for herein for the
commencement of the taking of proofs, and he shall proceed therewith during the period
fixed by him and named in the said notice, after which no proofs can be received by or filed
with the said state engineer; provided, however, that the state engineer may, for cause shown,
in his discretion, extend the time in which proofs may be filed. Any person who shall fail to
appear herein and make proof of his claim or rights in or to the waters of said stream system,
as required by this act, prior to the expiration of the period fixed by said state engineer during
which proofs may be filed, shall be deemed guilty of a misdemeanor, and if an individual
person, shall upon conviction, be punished by a fine of not less than two hundred and fifty
dollars ($250), and not exceeding one thousand dollars ($1,000), or by imprisonment in the
county jail for a term of not less than ten days and not exceeding six months, or by both such
fine and imprisonment in the discretion of the court, and if a corporation, each and every
officer and director thereof shall be amenable to said punishment hereinbefore in this section
provided; provided, however, that the state engineer may, in his discretion, accept and use as
a proof of claim any instrument purporting to be a record of a water right, recorded in the
county or counties in which such stream system lies, and render a finding for a water right for
the number of irrigated acres of land as found by his observation; provided further, that a
finding rendered by the state engineer on a water claim, the holder of which is in default,
shall be given a later priority than the rights of claimants whose proofs were filed in
accordance with the provisions of this act."
default, shall be given a later priority than the rights of claimants whose proofs were filed in
accordance with the provisions of this act.
Section 26 provides for the intervention of interested parties.
Section 27 has to do with the fees to be paid by claimants to the state engineer.
Section 28 provides for the assembling of all proofs filed with the state engineer, and
further provides that as soon as possible the state engineer shall prepare a notice fixing and
setting the time and place when and where the evidence taken by or filed with him shall be
open to the inspection of all interested persons; said period of inspection to be not less than
ten days, which notice shall be deemed to be an order of the state engineer as to the matters
contained therein.
Section 29 provides for the manner of instituting contests.
Section 30 has to do with the conduct of hearing the contests.
Section 31 empowers the state engineer to make rules governing contests.
Section 32 provides for the payment of fees by the contestants.
Section 33 is as follows: As soon as practicable after the hearing of contests, it shall be
the duty of the state engineer to make, and cause to be entered of record in his office, an order
determining and establishing the several rights to the waters of said stream; provided,
however, that within sixty days after the entry of an order establishing water rights, the state
engineer may, for good cause shown, reopen the proceedings and grant a rehearing. Such
order and determination shall be prepared, and, after certification by the state engineer,
printed in the state printing office. A copy of said order and determination shall be sent by
registered mail, or delivered in person to each person who has filed proof of claim, and to
each person who has become interested through intervention or by having entered a contest
through having received a permit from the office of the state engineer, as herein
provided.
through having received a permit from the office of the state engineer, as herein provided.
The determination of the state engineer shall be in full force and effect from and after the date
of its entry in the records of the state engineer, unless and until its operation shall be stayed
by a stay bond as provided for by this act.
Section 34 provides: Any party, or any number of parties acting jointly, who may feel
themselves aggrieved by the determination of the state engineer may have an appeal from the
order of the state engineer to any district court of the State of Nevada in which any part of
such stream system involved in such determination may be situated. All persons joining in the
appeal shall be joined as appellants, and all persons having interests adverse to the parties
appealing or either of them shall be joined as appellees; provided, however, that such appeal
must be taken within six (6) months of the date on which said party or parties appealing have
received a copy of the order of the state engineer determining said rights.
Section 35 provides: The party or parties appealing shall, within six (6) months after the
receipt of a copy of the order of the state engineer determining the rights to the use of water,
file in the district court to which appeal is taken, a notice in writing stating that such party or
parties appeal to such district court from the determination and order of the state engineer;
and upon the filing of such notice, the appeal shall be deemed to have been taken; provided,
however, that the party or parties appealing shall, within the six (6) months mentioned, enter
into an undertaking, to be approved by the district court or judge thereof, and to be given to
all the parties in the said suit or proceeding, other than the parties appealing, and to be in such
an amount as the court or judge thereof shall fix, conditioned that the parties giving their said
undertaking shall prosecute their appeal to effect and without unnecessary delay and will pay
all costs and damages which the party to whom the undertaking is given, or either, or any of
them, may sustain in consequence of such appeal.
Section 36 provides the manner in which notice is served upon the state engineer as to the
pendency of the appeal.
Section 37 provides: The appellant or appellants shall within sixty days after the appeal,
as provided for, is perfected, file in the office of the clerk of the district court a certified
transcript of the order of determination made by the state engineer, and which is appealed
from, a certified copy of all records of the state engineer relating to such determination, and a
certified copy of all evidence offered before the state engineer, including such measurements,
maps, and determinations as herein provided to be made of record by the state engineer,
together with the petition setting out the cause of the complaint of the party or parties
appealing, to which petition all parties joined as appellees shall be served with notice by the
issuance of a summons out of the office of the clerk of the district court, within the time and
in the manner provided by law for the issuance and service of summons in actions of law.
Section 38 provides that the proceeding on appeal shall be conducted in the manner in
which appeals are taken from the district court to the supreme court.
Section 39 provides the manner in which the judgment of the district court may be
transmitted to the state engineer.
Section 40 provides that the costs on the appeal proceedings shall be paid by the losing
party.
Section 41 provides for the manner of staying the order or decree appealed from, providing
in that respect that an undertaking with good and sufficient sureties may be filed with the
district judge in such amount as that officer may prescribe, conditioned that the appellant will
pay all damages that may accrue to the appellee or appellees by reason of such order or decree
not being enforced, should the proceedings and appeal be decided against the appellant.
Section 42 provides that hearings in these classes of cases shall have precedence over all
civil causes.
Section 43 provides that the civil practice act of the State of Nevada shall govern in
appeals from the decree of the district court for rehearings in the supreme court.
Section 44 provides: The final orders or decrees of the state engineer, in the proceedings
provided by law for the adjudication and determination of rights to the use of the waters in
this state, shall be conclusive as to all prior appropriations, and the rights of all existing
claimants upon the stream or other body of water lawfully embraced in the adjudication,
subject, however, to the provisions of law for appeals, rehearings and for the reopening of the
orders or decrees therein.
Section 45 provides: In any suit which may be brought in any district court in the state for
the determination of a right or rights to the use of water of any stream, all persons who claim
the right to use the waters of such stream and the stream system of which it is a part shall be
made parties. When any such suit has been filed, the court shall by its order duly entered,
direct the state engineer to furnish a complete hydrographic survey of such stream system,
which survey shall be made as provided in section 20 of this act, in order to obtain all
physical data necessary to the determination of the rights involved. The cost of such suit,
including the costs on behalf of the state and of such surveys, shall be charged against each of
the private parties thereto in proportion to the amount of water right allotted. In the case of
any such suit now pending or hereafter commenced the same may at any time after its
inception, in the discretion of the court, be transferred to the state engineer for determination
as in this act provided.
Section 46 has to do with the appropration of $5,000 to constitute a hydrographic fund.
Sections 47, 48, and 49 have to do with the definition of certain words used in the act.
Section 50 makes provision for the state engineer to formulate rules requiring claimants to
furnish blue-prints of particular parcels of land.
Section 51 provides: Upon the final determination of the relative rights in and to the
waters of any stream system, it shall be the duty of the state engineer to issue to each
person represented in such determination a certificate to be signed by such state
engineer, and bearing the seal of his office, setting forth the name and postoffice address
of the owner of the right, the date of priority, extent and purpose of such right; and if
such water be for irrigation purposes, a description of the land, by legal subdivisions
when possible, to which said water is appurtenant.
the relative rights in and to the waters of any stream system, it shall be the duty of the state
engineer to issue to each person represented in such determination a certificate to be signed
by such state engineer, and bearing the seal of his office, setting forth the name and postoffice
address of the owner of the right, the date of priority, extent and purpose of such right; and if
such water be for irrigation purposes, a description of the land, by legal subdivisions when
possible, to which said water is appurtenant. * * *
Three primary questions are involved in the determination of the matter at bar:
FirstBy the water law of 1913 and its provisions, authorizing adjudication and
determination, set forth from sections 18 to 51, inclusive, is the state engineer vested with
powers in contravention to the provisions of the constitution of the United States and the
constitution of the State of Nevada?
SecondBy the act of 1913, is the state engineer empowered to adjudicate and determine
the right of plaintiffs to the use of the waters appropriated, inasmuch as it is admitted in these
proceedings, and for the purpose of these proceedings, that these rights became vested, prior
to the creation of the office of state engineer, by the act of the water law of 1913?
ThirdBy section 84 of the water law of 1913 are legal appropriations of water, made and
acquired prior to the operation of the water law of 1913 exempt from the operation of that
act?
[1] The first of these questions, while perhaps the most important, although not necessarily
the most significant, requires for its solution careful consideration of the prescriptions and
provisions of the organic law of this state, keeping in mind the due process guaranty
extended by the fourteenth amendment to the constitution of the United States. Article 1, sec.
8, of the constitution of the State of Nevada, provides, inter alia: Nor be deprived of life,
liberty, or property, without due process of law.
As to the due process provision, this court has held in Gibson v. Mason, 5 Nev. 302:
Evidently nothing further was intended by it than to secure to the citizens the usual and
ordinary means or course of judicial proceedings generally followed or observed in similar
cases at the time it became a part of the fundamental law.
Further it is stated in that case: By due process of law,' as used in the constitution, is
simply meant such general legal forms and course of proceedings as were known either to the
common law or as were generally recognized in this country at the time of the adoption of the
constitution.
See Wright v. Cradlebaugh, 3 Nev. 342; State v. Millain, 3 Nev. 466.
Due process of law not only requires that the party shall be brought into court, but that he
shall have opportunity in court to establish any facts which, according to the usages of
common law, or the provisions of the constitution, will be a protection to himself and
property.
Article 3, sec. 1, of the constitution of the State of Nevada, provides that: The powers of
the government of the State of Nevada shall be divided into three separate 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 functions
appertaining to either of the others, except in the cases herein expressly directed or
permitted.
Article 6, sec. 1, of the constitution of Nevada, provides: The judicial power of this state
shall be vested in a supreme court, district courts, and in justices of the peace. The legislature
may also establish courts, for municipal purposes only, in incorporated cities and towns.
Article 6, sec. 6, of the constitution of the State of Nevada, provides: The district courts
in the several judicial districts of this state shall have original jurisdiction in all cases in
equity; also, in all cases at law which involve the title or the right of possession to, or the
possession of, real property, or mining claims, or the legality of any tax, impost,
assessment, toll, or municipal fine, and in all other cases in which the demand {exclusive
of interest) or the value of the property in controversy exceeds three hundred dollars.
possession of, real property, or mining claims, or the legality of any tax, impost, assessment,
toll, or municipal fine, and in all other cases in which the demand (exclusive of interest) or
the value of the property in controversy exceeds three hundred dollars. * * * They shall also
have final appellate jurisdiction in cases arising in justices' courts and such other inferior
tribunals as may be established by law.
It may be well to observe here that the subject under consideration is one which deals with
real property, in the strictest sense of the word. (Hough v. Porter, 51 Or. 318, 95 Pac. 732, 98
Pac. 1083, Pac. 768.)
Mr. Kinney, in his work on Water Rights, 2d ed. vol. 2, sec. 768, says:
The distinct, exclusive, usufructuary estate acquired by an appropriator to the use of
water, by its lawful appropriation, is property of the highest order and oftentimes of the
highest value. The water right is protected by the law as such, and is subject to all the usual
incidents of property. This property right in water is as important, as valuable, and as
extensive as the use to which it is applied. The land is comparatively valueless without the
water to irrigate it. * * * The property in a water consists, not alone in the amount of water
claimed under an appropriation, but also in the priority of the appropriation. And it very often
happens that the chief value of an appropriation consists in its priority over other
appropriations from the same stream. Hence, to deprive one of his priority to appropriate
would be to deprive him of a most valuable property right. A perfected water right is a vested
property right and its value capable of estimation in money, and one which the law protects.
A water right is such a property right that it comes clearly within the constitutional provisions
that property shall not be taken or damaged for public or private use, except upon due process
of law and upon just compensation.
The courts of many of the western states have announced a similar doctrine; in fact, it is
one almost universally accepted. (Waha v. Lewiston, 158 Fed. 137; Mohl v. Lamar Canal Co.,
v. Lamar Canal Co., 128 Fed. 776; Town of Sterling v. Pawnee Co., 42 Colo. 421, 94 Pac.
339, 15 L. R. A. n. s. 238; Fisher v. Bountiful City, 21 Utah, 29, 59 Pac. 520; Dalton v.
Bowker, 8 Nev. 190; Nielson v. Parker, 19 Idaho, 727, 115 Pac. 488.)
The power to determine relative rights sought to be conferred by this statute upon the state
engineer has, in our judgment, been very properly termed a power to quiet title. (Rickey Land
Co. v. Miller & Lux, 152 Fed. 11, 81 C. C. A. 207.)
[2] It is contended that the provisions of our water law of 1913 having been taken in
substance at least from the statues of Wyoming, and inasmuch as the Supreme Court of
Wyoming has construed (Farm Investment Co. v. Carpenter, 9 Wyo. 110, 61 Pac. 258, 50 L.
R. A. 747, 87 Am. St. Rep. 918) that statute, the rule of statutory adoption should apply to the
effect that, in the adoption of a statute from the State of Wyoming we are bound by the
interpretation and construction of the court of last resort of the state from whence the statute
was taken. The correct rule, in this respect, is, in our judgment, laid down in the case of First
National Bank of Butte v. Bell Co., 8 Mont. 46, 19 Pac. 403, in which it is said that when a
particular statute has been adopted by a state from the statutes of another, after a judicial
interpretation has been placed upon it by the parent state, the courts of the adopting state are
bound by the interpretation or construction of the court of the parent state, unless the
circumstances of the people of the adopting state are so different as to require the application
of another rule. Moreover, it is fundamental and requires no citation of authorities that, where
the organic law of the adopting state is totally different in some applicable particular from
that of the parent state, the adopting state is not bound by the interpretation of the parent state.
Furthermore, it must appear that the statutes are identical. (Swofford v. Mills, 86 Fed. 556;
Kirman v. Powning, 25 Nev. 378, 60 Pac. 834, 61 Pac. 1090.)
It is further contended by appellant that the view of the Wyoming court was adopted by
the Supreme Court of Nebraska in construing a similar statute, and we are cited to the
case of Crawford v. Hathaway, 67 Neb. 325, 93 N. W. 7S1, 60 L. R. A.
the Wyoming court was adopted by the Supreme Court of Nebraska in construing a similar
statute, and we are cited to the case of Crawford v. Hathaway, 67 Neb. 325, 93 N. W. 781, 60
L. R. A. 889, 108 Am. St. Rep. 647.
In approaching the subject, it may be well to compare the organic law of Nevada with that
of Wyoming in the first instance, and, secondly, with that of Nebraska, and in our comparison
to consider the grants and inhibitions of jurisdiction of the established courts in the respective
states.
At the outset we find our own constitution lacking in any provision bearing directly upon
the subject of public waters, or appropriation, or use of the same, except in so far as we may
have adopted the common law.
In the constitution of Wyoming a specific provision is found bearing at length upon the
subject. Article 8 of the constitution of Wyoming is devoted entirely to the subject of
irrigation and water rights, and, in order that my analysis may be more comprehensive, I
quote it at length:
Section 1. Water Is State Property. The water of all natural streams, springs, lakes, or
other collections of still water, within the boundaries of the state, are hereby declared to be
the property of the state.
Sec. 2. Board of Control. There shall be constituted a board of control, to be composed of
the state engineer and superintendents of the water divisions; which shall, under such
regulations as may be prescribed by law, have the supervision of the waters of the state and of
their appropriation, distribution and diversion, and of the various officers connected
therewith. Its decisions to be subject to review by the courts of the state.
Sec. 3. Priority of Appropriation. Priority of appropriation for beneficial uses shall give
the better right. No appropriation shall be denied except when such denial is demanded by the
public interests.
Sec. 4. Water Divisions. The legislature shall by law divide the state into four (4) water
divisions, and provide for the appointment of superintendents thereof.
Sec. 5. State Engineer. There shall be a state engineer who shall be appointed by the
governor of the state and confirmed by the senate; he shall hold his office for the term of six
(6) years, or until his successor shall have been appointed and shall have qualified. He shall
be president of the board of control, and shall have general supervision of the waters of the
state and of the officers connected with its distribution. No person shall be appointed to this
position who has not such theoretical knowledge and such practical experience and skill as
shall fit him for the position.
The constitution of Nebraska is silent upon the subject of irrigation and water rights, but in
this respect it may be well to observe that the doctrine of riparian rights has at all times
consistently been held in force in that state. (Crawford v. Hathaway, supra.)
In the case of Crawford v. Hathaway, supra, it must be observed that while the Supreme
Court of Nebraska cited approvingly the decision of the Supreme Court of Wyoming in the
case of Farmers' Investment Co. v. Carpenter, supra, without a constitutional provision
bearing upon the subject of irrigation or water rights, it premised the case largely upon the
doctrine of riparian rights consistently maintained and applied in that state, and laid as a
second premise the right of condemnation, declaring the same to be applicable as against
riparian owners.
In our judgment, the constitution of the State of Wyoming, declaring, as it did, that all
natural bodies of water are property of the state, and in giving to the board of control the
power to supervise the waters of the state and the appropriation thereof, seems to have been
adopted with the view of conferring ultimate powers of determination, whether they be
termed judicial or quasi-judicial, on the board of control, and the statute of Wyoming,
construed and interpreted in the case of Farmers' Investment Co. v. Carpenter, supra, was
enacted pursuant to this special constitutional authorization.
In discussing the case of Farmers' Investment Co. v. Carpenter, supra, Mr.
Carpenter, supra, Mr. Kinney, in his work on Irrigation, says: From a careful study of the
constitution of Wyoming, we are of the opinion that the court might have better rested its
decision squarely upon the proposition that, under the state constitution, the board was vested
with judicial power to try and decide the existing rights to water. The state constitution seems
to have been adopted with this very end in view. It is true that section 1 of article 5 provides
that: The judicial power of the state shall be vested in the senate, sitting as a court of
impeachment, in a supreme court, district courts, justices of the peace, courts of arbitration,
and such other courts as the legislature may by general law establish for incorporated cities
and towns.' But in the same instrument, by section 2 of article 8, upon the very subject under
discussion it is also provided: There shall be constituted a board of control, to be composed
of the state engineer and superintendents of water divisions, which shall, under such
regulations as may be prescribed by law, have the supervision of the waters of the state and of
their appropriation, distribution, and diversion, and of the various officers connected
therewith, its decisions to be subject to review by the courts of the state.' (Kinney on
Irrigation, 2d ed. vol. 3, pp. 2885, 2886.)
Whatever may be said by way of argument as to the decision of the Wyoming court, in the
case of Farmers' Investment Co. v. Carpenter, supra, and its application into the statute under
consideration, this much is manifest at the outset: That, by specific declaration, the organic
law of Wyoming laid the foundation for legislation upon the subject of water rights and
contemplated a board of control with supervisory powers. Whether the Supreme Court of
Wyoming, in its construction and interpretation of the Wyoming statute, rested its case upon
the constitutional provision or not, it at least had the constitutional provision before it,
expressly declaring the spirit and policy of the founders of the government of that state
applicable to public waters.
But the constitution of Nevada, in my judgment, will not permit of any arbitrary method,
such as that prescribed by the sections of the statute under consideration, for the
adjudication of property rights.
permit of any arbitrary method, such as that prescribed by the sections of the statute under
consideration, for the adjudication of property rights.
The framers of our constitution, having in mind the all-important question of the
protection of life and the security to the individual of the enjoyment of property, after
guaranteeing these things, prescribed the avenues by which either might be taken from the
individual, and in that respect they conferred upon the district courts in the several judicial
districts of the state original jurisdiction in all cases in equity, and also conferred upon those
courts original jurisdiction in all cases at law, which involved the title or the right of
possession to or possession of real property. The founders of the organic law also prescribed
the only avenues by which the district court should have appellate jurisdiction. In that respect
article 6, sec. 6, prescribes that they shall also have final appellate jurisdiction in cases arising
in justices' courts and such other inferior tribunals as may be established by law. And the
affirmative words in a constitution that courts shall have the jurisdiction stated naturally
include a negative that they shall have no other. (Lake v. Lake, 17 Nev. 238, 30 Pac. 878.)
When jurisdiction is affirmatively conferred upon a given court, it is to be deemed
exclusive, unless by constitutional provisions an exception is made, or the power is conferred
upon the legislature to extend jurisdiction in certain cases. Original jurisdiction affirmatively
conferred upon a given court in civil actions, without a stated exception, and without power
expressly given to the legislature to either limit or increase this jurisdiction, the jurisdiction
thus conferred is exclusive. (State v. Rising, 10 Nev. 97.)
Section 33 of the act of 1913 empowers the engineer to make and cause to be entered of
record in the office an order determining and establishing the several rights to the waters of a
given stream.
Reading sections 18, 25, and 33 in conjunction with section 44, the act makes conclusive
the orders of the state engineer made pursuant to his determination as to all prior
appropriations and the rights of all existing claimants upon streams or other bodies of
water lawfully embraced in the adjudication.
state engineer made pursuant to his determination as to all prior appropriations and the rights
of all existing claimants upon streams or other bodies of water lawfully embraced in the
adjudication.
What is involved in the determination of the state engineer? The right to the use of water
for beneficial purposes. Upon what does this right depend? Prior appropriation and beneficial
application. Are these questions of law as well as of fact? Manifestly they are. Are they
questions which may involve the law and the adjudication and decrees of courts? These
questions must all be answered in the affirmative.
It is claimed that these sections, and the policy of the law generally, merely confers upon
the state engineer ministerial powers, and that even though the powers of the state engineer,
as sought to be conferred, are quasi-judicial, the claimant is not deprived of due process of
law, inasmuch as the statute prescribes that he may appeal to the district court. These
contentions, in my judgment, are untenable, under a strict reading of the statute. By section 44
it is provided that the determination of the state engineer shall be conclusive as to all existing
claimants upon the stream. Section 55 emphasizes the conclusiveness of the state engineer's
determination, and the constitution precludes appeal.
It is suggested that the provisions of these sections are only to confer upon the state
engineer ministerial powers in order to carry out a scheme of water supervision and
regulation. But how can this be seriously contended for, when by section 44 the final
determination of the state engineer is termed a decree, and the proceeding is termed an
adjudication and determination, and the decree of the state engineer is by that section made
conclusive as to the existing rights of the claimants upon the stream? Conclusive decrees
made by a ministerial officer upon a matter involving the title and the right of possession to
propertythat subject with reference to which the fundamental law of this state declares the
district courts of the several judicial districts of the state shall have original jurisdiction."
shall have original jurisdiction. But it is contended that, inasmuch as the right of appeal to
the district court is prescribed for any person deeming himself aggrieved by these final
decrees of the state engineer, the courts, by the act of 1913, have not been ousted of that
which the constitution declares is for them alone to determine. But the answer to this is that
the only appellate jurisdiction given by the constitution to the district court is that which is
prescribed specifically by section 6, art. 6, in which it is declared: They shall have final
appellate jurisdiction in cases arising in justices' courts and such other inferior tribunals as
may be established by law.
It is unnecessary for me to say, I apprehend, that the state engineer is not an inferior
tribunal, as contemplated by the provision of the constitution. (Meagher v. County of Storey,
5 Nev. 249.) This being disposed of, the only appellate jurisdiction which the district court is
possessed of is in cases arising in justices' courts.
This last observation makes the provisions of the water law of 1913 even more drastic than
its words imply, for it confers upon a ministerial officer powers of final determination on
matters involving the right of the possession to property, and fixes the only avenue of redress
for a party aggrieved to a court, which, by constitutional prescription, is precluded from
assuming appellate jurisdiction. This provision of the water act of 1913 is a nullity. A law
which is in conflict with the fundamental law of the state is not a law at all. (Meagher v.
Storey Co., 5 Nev. 249; Lake v. Lake, 17 Nev. 230, 30 Pac. 878.) Furthermore, the only
appellate jurisdiction which the district court takes under the constitution is a final appellate
jurisdiction, one from which there is no appeal to the highest court of the state. (Floyd and
Gutherie v. Sixth Judicial District Court, 36 Nev. 349; Bancroft v. Pike, 33 Nev. 80, 110 Pac.
1; State v. Rising, 10 Nev. 101; Leonard v. Peacock, 8 Nev. 157.)
Hence it follows that unless we read into section 6 of article 6 of our constitution a different
appellate jurisdiction for the district court from that which the constitution prescribes, and
which has been settled by the various decisions of the court, the appeal that might be
taken by an aggrieved party from the final order or decree of the state engineer, even
were such an appeal contemplated by the constitution, would be terminated by a decree
of the district court, and this court would be prescribed from hearing or determining the
controversy.
prescribes, and which has been settled by the various decisions of the court, the appeal that
might be taken by an aggrieved party from the final order or decree of the state engineer, even
were such an appeal contemplated by the constitution, would be terminated by a decree of the
district court, and this court would be prescribed from hearing or determining the controversy.
I have already mentioned that the water law of 1913 is dissimilar to the Wyoming act,
construed in the case of Farmers' Investment Co. v. Carpenter, supra, and it may be well to
observe here that, while those portions of the water act of 1913 adopted from the Wyoming
statute might be applicable under the constitutional provisions of Wyoming, they are
inapplicable under the constitutional provisions of this state. This is especially true when we
consider the constitutional conference of jurisdiction extended to the several courts in the
respective states. The constitutional authorization of appellate jurisdiction of the district court
in the States of Wyoming and Nebraska differs most materially from that conferred upon the
district court in this state.
Article 5, sec. 10, of the constitution of Wyoming, provides: They shall have such
appellate jurisdiction in cases arising in justices' courts and other inferior courts in their
respective counties as may be prescribed by law.
Article 6, sec. 17, of the constitution of Nebraska, provides: Appeals to the district court
from the judgments of county courts shall be allowed in all criminal cases, on application of
the defendant; and in all civil cases, on application of either party, and in such other cases as
may be provided by law.
Article 6, sec. 6, of the constitution of Nevada, in this respect, provides: They shall also
have final appellate jurisdiction in cases arising in justices' courts and such other inferior
tribunals as may be established by law.
The constitutional provisions of the States of Wyoming and Nebraska, conferring appellate
jurisdiction upon the district courts and county courts, do not make that jurisdiction final, and
I am unable to find an expression of the courts of last resort of the states mentioned in
which the appellate jurisdiction of the county court or the district court has been declared
to be final.
courts of last resort of the states mentioned in which the appellate jurisdiction of the county
court or the district court has been declared to be final. On the contrary, the Supreme Court of
Wyoming, in passing upon this very subject, said: An appeal to the district court from a
decision of the board is merely a continuation of those proceedings in an appellate tribunal.
(Willey v. Decker, 11 Wyo. 548, 73 Pac. 210, 100 Am. St. Rep. 939.)
As has already been stated, the constitution limits the appellate jurisdiction of the district
court to those cases appealed from justices' courts and such other inferior tribunals as may be
established by law, and hence it follows that unless we read into this provision of the
constitution either that the state engineer is an inferior tribunal, established by the water law
of 1913, or that the district court will take appellate jurisdiction cases other than those
conferred upon it by the organic law, it necessarily follows that the provision of the water law
of 1913, as to appeals from the orders and determinative decrees of the state engineer, are
unconstitutional, and the district court would be without power to assume such jurisdiction. If
we view the contemplated final orders or decrees of the state engineer and his determinations
in the light of these conclusions, it unanswerably follows that, there being no appeal from the
determinations of the state engineer, they are therefore final determinations, and these final
determinations are in matters in which the right of possession to property is involved, and the
party aggrieved is cut off from access to the civil courts, and the constitutional guaranty is
nullified. My reasoning, in this respect, might not be applicable under the laws and
constitution of Wyoming or Nebraska, inasmuch as different provisions are there made as to
the original and appellate jurisdiction of the several courts from that which is found in our
organic law.
It has been asserted that the hearing and proceeding before the state engineer is neither a
matter at law nor in equity. Assuming, for the time, the correctness of this assertion, the
property subject to determination and the property rights subject to the adjudication of the
state engineer, in the contemplation of the water act of 1913, are matters which, by our
constitutional provisions, can only be determined by tribunals having jurisdiction in law
and equity, as contemplated in that organic act.
the property rights subject to the adjudication of the state engineer, in the contemplation of
the water act of 1913, are matters which, by our constitutional provisions, can only be
determined by tribunals having jurisdiction in law and equity, as contemplated in that organic
act. Moreover, the question is not as to whether the power exercised by the state engineer,
under the provisions of the water act of 1913, is judicial. The question is: Is the matter
involved (i. e., the possession or right of possession to property) one which can only be
determined by the exercise of judicial functions? In other words, is the ultimate fact to be
determined, the right to be granted or denied, one which can only be granted or denied by the
judicial branch of the government?
Water being a property right, and its enjoyment arising primarily on appropriation and
priority, each of these elements is essential to the right under the doctrine of first in time first
in right. Yet, if we give to section 25 of the water law of 1913 the full meaning of the words
there used, it is within the power of the state engineer, moreover, it is made mandatory, that
the state engineer shall render a finding in case of the claimant who defaults in making proof
that the claimant, regardless of his actual priority, shall be given a later priority than that of
others whose proofs were filed in accordance with the provisions of the act.
The very acme of severity, if not absurdity, is reached by section 25, wherein it is
prescribed that any person who shall fail to appear and make proof of his claim or right in and
to the waters of a stream system, as required by this act, prior to the expiration of the period
fixed by the state engineer during which proof may be filed, shall be deemed guilty of a
misdemeanor and, if an individual person, shall be punished by a fine of not less than $250
and not exceeding $1,000 or by imprisonment in the county jail for a term of not exceeding
six months, or by both such fine and imprisonment, in the discretion of the court. Section 25,
as it stands, reads that a defaulting claimant shall be divested of his property rights, and,
moreover, he shall be subjected to the indignity of fine or imprisonment for having given
up that right.
moreover, he shall be subjected to the indignity of fine or imprisonment for having given up
that right. It has been said by a learned text-writer on the subject of water rights in western
states that the laws of Wyoming were adopted in part from the laws of Italy and India. This
provision, although not found in the statutes of Wyoming, may have been taken from the laws
of India, but we find no sanction for such provision in a government such as ours.
Mention of section 25 is unnecessary in the matter at bar, except in so far as it goes to
refute the assertion that the acts of the engineer are only ministerial. Section 25 carries out the
spirit of the law which is to make final the decrees rendered by the engineer. This is absent in
the laws of the other states.
Mr. Kinney, in his work on Irrigation and Water Rights, in discussing the subject of state
control, under a system similar to the Wyoming law, says: It was evidently the intent to give
him (the state engineer) or board of control, over which he presides, the exclusive jurisdiction
in the determination of existing water rights within the state, and the power to enforce his or
its decisions, in the distribution of the water. In other words, as far as this phase of the subject
is concerned, it was to be a government by engineers. But the constitutional convention and
the legislature, departing from the original conception of the framer of the bill, gave the right
of appeal to the courts. And, further, the supreme court of the state, by its decisions in
construing the law after its enactment, has also modified what was undoubtedly the intent of
the framer of the bill by holding that an appropriator who had not even presented his claim to
the board of control, even after notice of the proceedings, was not estopped from afterward
asserting his rights in the district court, and further by holding that a water right cannot be
made an inseparable appurtenance to a certain tract of land, as was attempted by the act, but
which feature was held to be unconstitutional, and that, too, even after the views' of the
engineer in question and the framer of the bill had been presented to the court.
and the framer of the bill had been presented to the court. It is true that such an arbitrary
method as designed might prevent litigation. But it is also true that, if the citizens of this
country cannot settle their disputes peaceably, they should be given the right to resort to the
courts for their adjudication as to their respective rights. (Kinney on Water Rights, 2d ed.
vol. 3, p. 2901.)
In the case of Thorp v. Woolman, 1 Mont. 168, the Supreme Court of Montana, in passing
upon the constitutionality of an act providing for the appointment of three commissioners
empowered by the act of the legislature to apportion in a just and equitable proportion the
waters of certain streams, without dwelling upon the subject at length, said: The powers
given this commission by the act under which they conducted their proceedings are clearly
judicial. They are empowered by it to apportion the waters in a just and equitable proportion.
This required them to determine what was just and equitable between these parties. In the
next place, the apportionment was to be made with a due regard to the legal rights of all. This
required of them to determine what these legal rights were. The organic act of this territory,
which is its fundamental law, limits the powers of legislation, vests judicial power in a
supreme court, district courts, probate courts, and in justices of the peace. No tribunal which
does not belong to one of these classes is legal. As this commission cannot claim to belong to
either one of these, it was a tribunal exercising judicial authority without legal warrant, and
its acts are void.
The decision in the case of Thorp v. Woolman, in this respect, was reannunciated by the
same court in the case of Thorp v. Freed, 1 Mont. 656.
In view of my analysis heretofore set forth, it is unnecessary for us to dwell on the
hardshipful and expensive means, set forth in the water law of 1913, by which appeals may
be perfected. It is not a question as to whether or not the respondents in this case are
financially able to comply with the requisites of the law as they are set forth.
financially able to comply with the requisites of the law as they are set forth. The policy of
this state, from its earliest day until the present time, has been to invite the home builder, and
in most instances the people who have heretofore settled in our valleys and builded homes
and tilled our soil have been people of limited means, unable to afford the money necessary to
meet the requisite expenses demanded of them in an act of this character to protect their
rights, so that, even if the right of appeal was afforded and not prohibited by the constitution,
the expensive method provided by the act for perfecting an appeal from an order and decree
of the state engineer would become prohibitive.
It may be contended that we are not called upon to construe or interpret many of the
sections herein referred to, but this contention is untenable, inasmuch as sections 18 to 51,
taken as a whole, constitute a proposed scheme for investigation, determination, and
adjudication on the part of the state engineer, and the entire plan whereby the state engineer's
determination is to become final, and the entire arrangement whereby the courts are ousted of
jurisdiction, is to be found within those sections of the act.
It will not do to say that the claimant may relieve himself of the action of the engineer by
an action in court, by the ordinary proceeding, independent of the provisions of the act. This
would be to declare that hardshipful litigation is to be promoted by this act. It would in effect
say that the action of the engineer, however arbitrary and unjust, must stand against a
claimant's property, unless by good fortune he be possessed of the means to carry on
litigation.
The notice of the engineer in this case declares that he will determine relative rights of the
water claimants on the Humboldt River system within the several counties named. The scope
of the term relative rights may at first thought fail to receive due appreciation. It is not a
question of the engineer determining the appropriations and priorities for his own guidance
and supervision, or for ministerial purposes.
for ministerial purposes. The matter embrace within the term relative rights means the right
of every claimant on the Humboldt River system in relation to every other claimant. It means
that every appropriator of water becomes a contestant for his priority and for his appropriation
against every other claimant, and the engineer, by his notice, assumes to investigate,
adjudicate, and finally determine, not only for ministerial purposes, not only for purposes of
supervision, but for purposes of final adjudication, the legality of every appropriation from a
standpoint of application to beneficial use and priority, and from his determination, as we
have already disclosed, the constitution of this state precludes the possibility of appeal to the
courts, in so far as the provisions of this act, under which the engineer seeks to operate, is
concerned.
The question of relative rights, as between water claimants on a stream system, is a matter
between the several claimants, one to be determined by the courts, and one with which the
engineer has no concern.
These executives, says the Supreme Court of Colorado, may, and indeed should,
prevent waste and insist upon economical use; but, where there is a real and bona fide dispute
as to the relative rights to the use of water * * * between several claimants, these officers are
not called upon to inject themselves into the controversy and decide between them. (Boulder
& Left-Hand Ditch Co. v. Hoover, 48 Colo. 343, 110 Pac. 77.)
It follows that the acts of the engineer, even if intended to be ministerial, become final
because of constitutional provisions as to the jurisdiction of courts prohibiting review by the
process suggested by the act.
May I suggest the query: What difference is there between a decree rendered by a court, as
to the right to enjoy property, and a decree rendered by a ministerial officer, as to the right to
enjoy property, if either or both are final? The former is by that department of the government
invested by the organic law with powers to decree on that subject; the latter is, by a
ministerial officer, expressly divested by the organic law of such powers.
officer, expressly divested by the organic law of such powers. It makes no difference whether
we term the act of adjudication, under this statute, ministerial or judicial; the distinction
is in the word, not in its significance. By reason of the peculiarity of our constitution, the
avenue suggested by the statue as one of redress affords no relief, because the courts cannot
take jurisdiction by the way suggested. Hence the acts of the engineer become final. The
courts are ousted of jurisdiction. The fact that other laws may give the courts power to act in
redress of wrongs committed under this act will not relieve this one of its unconstitutional
features.
The test of its unconstitutionality is whether it operates to deprive any person of a right
guaranteed or given by the constitution. If it does, it is a nullity, whatever may be its form.
(Davies v. McKeeby, 5 Nev. 372.)
Being final, they effect the subjects of which the courts have exclusive original jurisdiction.
Hence, the provisions of the act in this respect are contrary to the constitution. The
conclusions reached by the courts of Wyoming and Nebraska are not binding on this court,
first, because the act in question is different in its provisions from the water act of Wyoming,
construed in the case of Farmers' Investment Co. v. Carpenter; second, in the case of
Farmers' Investment Co. v. Carpenter, the Supreme Court of Wyoming had before it,
whether it rested its case upon it or not, specific provisions in the constitution of Wyoming
providing ab initio for the enactment of such a law as that found in the statutes of Wyoming;
third, the constitution of Wyoming, applicable to its judicial department, does not limit the
appellate jurisdiction of the district court as does the constitution of Nevada. Moreover, it
does not make final the judgment of the district court on matters of which it takes appellate
jurisdiction.
[3] The second and third questions may be properly determined together.
It is admitted in this action that all of the plaintiffs were appropriators of water from the
Humboldt River system prior to the enactment of the water law of 1913, and, in dealing
with this question the history of our water legislation in this state may have some
bearing.
were appropriators of water from the Humboldt River system prior to the enactment of the
water law of 1913, and, in dealing with this question the history of our water legislation in
this state may have some bearing. It was not until 1903 that the legislature of this state sought
to enact a comprehensive water law, and therein sought to create the office of state engineer.
The act of 1903 (Stats. 1903, c. 4) followed closely the enactment of the national irrigation
act, sometimes known as the Newlands Act, and it was at the instance and suggestion of the
author of that bill that the legislature of 1903 passed the enactment.
The act of 1903 was superseded by the act of 1905 (Stats. 1905, c. 46), and both of these
statutes were made applicable only to future and not past appropriations.
The act of 1905 was superseded by the act of 1907 (Stats. 1907, c. 18), in which act we
find the provision: All existing rights to the use of water, whether acquired by appropriation,
or otherwise, shall be respected and reserved, and nothing in this act shall be construed as
enlarging, abridging, or restricting such rights.
The act of 1907 by its terms applied specifically to unappropriated waters. The act of 1907
was superseded by the act of March 22,1913. Section 2 of the act of 1913 provides: Subject
to existing rights, all such water may be appropriated for beneficial use as provided in this act
and not otherwise.
Section 84 of the act of 1913 is as follows: Nothing in this act contained shall impair the
vested right of any person to the use of water, nor shall the right of any person to take and use
water be impaired or affected by any of the provisions of this act where appropriations have
been initiated in accordance with law prior to the approval of this act. * * *
The original law of this state applicable to the use of water in the natural streams of the
state was governed by the doctrine of riparian ownership, as known at common law, and
many appropriations were made and rights acquired under this doctrine, and it was not
until the doctrine of prior appropriation was initiated by this court, as being applicable to
the conditions existing in this state, that the riparian doctrine was abdicated.
rights acquired under this doctrine, and it was not until the doctrine of prior appropriation
was initiated by this court, as being applicable to the conditions existing in this state, that the
riparian doctrine was abdicated. (Vansickle v. Haines, 7 Nev. 249.)
The various legislative acts applicable to the subject of public waters and the appropriation
thereof clearly disclose that it was the intent of the legislature in each instance to recognize
existing rights, and the same intention and spirit are manifest in the act of 1913.
It might be said that under a system of water control, such as that contemplated by the acts
of the various states in the arid region, and in fact under the act of 1913 of this state, the
engineer might determine, for his own administrative purposes, and for the purpose of
admitting future appropriations, the exact extent of each appropriator's right, but this is not
the object nor the scope of the proposed action of the state engineer as declared by his
notices, upon which the complaint in this case was founded, because by these notices he
assumes the province of declaring relative rights, and draws each claimant into open contest
with every other claimant on the river system upon the two important subjects; i. e., amount
of appropriation and priority. And acting under the statute of 1913 and under his notices,
given pursuant thereto, he seeks to make final orders and decrees as to their respective
relative rights, and thereby he declares is intention to make such orders and decrees as will
necessarily impair and affect, to the extent of his determination and judgment, at least the
vested rights of persons whose appropriations have been initiated in accordance with the
customs or laws of this state prior to the act of 1913.
By section 84 of the water law of 1913, the legislature, in my judgment, merely sought to
carry out that same declaration and purpose and intention which had been a feature in former
legislative acts upon the same subject; i. e., to recognize appropriations made under former
laws or legislative acts, and to keep those appropriations free from being affected or
impaired by anything contained in the water law of 1913.
from being affected or impaired by anything contained in the water law of 1913.
The determination of individual rights upon a river system must not be confused with the
determination of relative rights. The determination of relative rights in this instance is one
affecting the rights of one individual as against another or a number of others, while the
determination of individual rights is one which does not correlate the comparative rights of
any other person. The latter might properly be said to be essential under a system of state
control in order that the controlling power might supervise and determine the availability of
future appropriations, but the former has no place in the contemplation of such a system, but
belongs primarily to the course. (Weil on Water Rights in Western States, vol. 2, p. 1103, and
authorities there cited.)
The act of Congress of July 26, 1866, enacted for the purpose of dealing with the rights of
miners who had theretofore, without objection, mined in the public lands, provided: That
wherever, by priority of possession, rights to the use of water for mining, agricultural,
manufacturing, or other purposes have vested and accrued, and the same are recognized and
acknowledged by the local customs, laws, and the decisions of courts, the possessors and
owners of such vested rights shall be maintained and protected in the same; and the right of
way for the construction of ditches and canals for the purpose aforesaid is hereby
acknowledged and confirmed. (Act July 26, 1866, c. 262, sec. 9, 14 Stat. 253.)
In construing this act, the Supreme Court of the Untied States, speaking through Mr.
Justice Miller, said: We are of the opinion that the section of the act which we have quoted
was rather a voluntary recognition of a preexisting right of possession, constituting a valid
claim to its continued use, than the establishment of a new one. (Broder v. Water Co., 101
U. S. 276, 25 L. Ed. 790; Platte Water Co. v. Northern Colo. Irr. Co., 12 Colo. 533, 21 Pac.
711.)
The reasoning, as set forth in the case of Broder v. Water Co., supra, is, in my judgment,
applicable to section 84 of the water act of 1913. Statutes of this character are not to be
viewed as retroactive, even if there were no declaration conveying a contrary idea. More
especially is this true in view of an express declaration, such as set forth in section 84.
(Palmer v. Railroad Comm, 138 Pac. 997.) It has been urged that this is progressive
legislation, instituted for the purpose of state control of public waters, and that the system of
adjudication and determination authorized by sections 18 to 51, inclusive, are essential to the
carrying out of this policy. But it must be observed that a similar policy is sought to be carried
out in the States of Oregon, Colorado, and Utah and Washington, and in each of these states
the jurisdiction, for primary adjudication, is vested in the court of prescribed power.
(Compiled Laws of Utah, 1907, sec. 1271; Lord's Oregon Laws, vol. 3, sec. 6650; Mills, Ann.
Statutes Colo. 1912, vol. 1, sec. 3801.)
While many of the provisions of the water law of 1913 may have been adopted from the
statutes of Wyoming, it is manifest that many of the provisions were taken from and are more
nearly like the statutes of Oregon, but in the latter state the court is looked to for adjudication.
The legislative plan of most of the western states for the regulation of the use of water,
vesting adjudication in their courts, has been brought about by reasons of their constitutional
provisions and the holding of their courts to the effect that any adjudication of priorities
within the meaning of the irrigation acts are judicial determinations. (Kinney on Irrigation,
vol. 3, 2d ed. p. 1586; Sterling Irr. Co. v. Downer, 19 Colo. 595, 36 Pac. 687; Thorp v.
Woolman, 1 Mont. 168.) Holding to the same effect upon analogous subjects are People v.
Dunn, 157 N. Y. 528, 52 N. E. 572, 43 L. R. A. 247; In Re Dumford, 7 Kan. App. 89, 53 Pac.
92; State v. Blaisdell, 22 N. D. 86, 132 N. W. 769, Ann. Cas. 1913e, 1089; Bridge Co. v.
Hogadone, 150 Mich. 638, 114 N. W. 917.
Under the codes of the states heretofore referred to, the uniform laws of procedure are
resorted to, and judgments and decrees are entered after the claimant has been afforded
opportunity to avail himself of all that due process of law guarantees. He may meet the
witnesses against him and cross-examine, a privilege most salient in all matters where either
liberty or property is in course of determination; and he may offer his proofs in support of his
own contentions in an orderly manner, and the judgment and decree entered thereon may be
reviewed by the highest court of the state. All this is denied under the water law of 1913, by
reason of our constitutional provisions as to original jurisdiction and appellate jurisdiction of
the several courts. Mr. Kinney, in his work on Irrigation, in speaking upon this phase of the
subject says:
The more we study the workings of the laws of the state control as to the determination
by governing boards in the first instance, of existing rights to the use of water, the more
firmly we are convinced that all judicial or quasi-judicial' powers should be taken from the
state engineer and governing boards, and vested in the courts, as is the case in Colorado,
where, under our form of government, that power properly belongs. And, fortunately, this is
the rule in the most of the states which have recently adopted these laws. It is true that in
Wyoming and Nebraska any party feeling himself aggrieved by the decision of the state
engineer or governing board may appeal from such decision to the district court, but the first
trial is before the board. And, furthermore, when an appeal is taken, it takes a double amount
of time and expense upon the part of the contestants in attending the trials and getting their
evidence properly before the board and court. Why is it not better for all parties concerned, in
the first instance, to bring the action in court and to have the matter properly adjudicated and
finally settled by a proper decree? If not satisfied with the decree and judgment of the trial
court, a party may then appeal to the supreme court of the state."
appeal to the supreme court of the state. (Kinney on Irrigation, 2d ed. vol. 3, p. 2902.)
The contention that the construction placed upon the Nebraska statute by the supreme
court of that state in the case of Crawford v. Hathaway, supra, should be binding on this
court is untenable, inasmuch as the Nebraska law was more nearly an exact copy of the
Wyoming law than is our water law of 1913. The provisions of our statute, as they appear in
sections 18 to 51, inclusive, are tantamount to the provisions of the Oregon law (sections
6635 to 6648), with the exception of section 25 of our statute.
The Nebraska court in the case of Crawford v. Hathaway, supra, based its conclusions
upon the following assertion:
The Wyoming statute, from which ours is borrowed, has been subjected to judicial
construction, and is upheld by the supreme court of that state on the express ground that the
powers authorized therein are not judicial but administrative. (Farm Investment Co. v.
Carpenter, 9 Wyo. 110, 61 Pac. 258, 50 L. R. A. 747, 87 Am. St. Rep. 918.) With this
authoritative construction of the statute, and a decision of the very question raised in the case
at bar, upon reasoning quite convincing and satisfactory, it would seem that the question
should be regarded as at rest. (Crawford v. Hathaway, 67 Neb. 365, 93 N. W. 795, 60 L. R.
A. 889, 108 Am. St. Rep. 647.)
In discussing the Wyoming and Nebraska decisions, supra, Mr. Weil, in his work on
Water Rights in Western States, says: These decisions are not consistent or clear among
themselves; they are inconsistent with the weight of authority, * * * and are unsound upon
principles, * * * as is shown by the general adoption in most states of a system of
adjudicating rights by special proceedings in court and not by administrative officers. (Weil,
Water Rights in Western States, vol. 2, 1108, 1109.)
Speaking finally, the vital question in this case, regardless of what phase it may assume, is
not as to whether the acts of the engineer were "ministerial" or "judicial."
acts of the engineer were ministerial or judicial. The question rather is, Does the law
attempt to confer upon an officer, outside of the judicial branch of the government, powers to
interfere in matters involving the possession of or right of possession to real property? If it
does, it violates the spirit and intent, as well as the specific provision of our constitution,
wherein these powers are exclusively vested in the courts. The constitution is the creation of
the people, and the legislature is the creation of the constitution. It follows that the people,
speaking through their constitution, are superior to the legislature, and that the enforcement of
the constitutional limitations upon legislation is the execution of the people's will, and not the
execution of judicial edicts. Courts neither make laws nor constitutions, but should remain
indifferent between them. Constitutions are for the protection of all and each for all time and
not for now and then. They deal with principles which are paramount in their nature, and
which derive their virtue from their stability. No such provisions as those found in the statute
under consideration were contemplated by the framers of our constitution. No foundation was
there laid for the enactment of any such legislation. Hence, when such statues are enacted,
they must by some means or another bring themselves into conformity with the provisions of
the constitution, or, at least, they must not be in conflict with some specific constitutional
inhibition.
It is my conclusion, from the anaysis heretofore set forth, that the provision of the act in
question seeks to confer judicial powers upon a nonjudicial officer. Moreover, it seeks to take
from the courts that which the organic law specified should be limited to the province of the
courtsthe right to determine matters involving the possession or the right of possession to
property. Moreover, the act cannot be viewed as retroactive, and the specific provisions of
section 84 speak for the legislature intent in that respect.
The order of the lower court in refusing to dissolve the injunction should have been
affirmed.
____________
37 Nev. 393, 393 (1914) Knox v. Kearney
[No. 2105]
FRANK L. KNOX, G. S. HOLMES, and FRED L. FOSTER, Respondents, v. W. M.
KEARNEY, as State Engineer of the State of Nevada, and L. TANNER, as Water
Commissioner of the Muddy River District, Appellants.
[142 Pac. 526]
1. PleadingComplaintConclusions of Law.
An allegation in the complaint, in an action to enjoin the state engineer and a district water
commissioner from preventing the water appropriated by plaintiffs from flowing into their irrigation
ditch, that defendants had, without authority of law therefor and without right closed the headgate of
plaintiffs' ditch was not objectionable as a mere conclusion of law, where another section of the
complaint set forth plaintiffs' appropriation of the water prior to the passage of the first comprehensive
water act, and alleged the consummation of its diversion and application to a beneficial use on or before
the year 1890, and that prior thereto no other person had acquired any right to the water thus
appropriated.
2. PleadingDemurrerPresumption.
In determining points of law raised by a demurrer, facts pleaded in a complaint are considered as true.
3. PleadingDemurrerPresumption.
Where it did not appear from the complaint, in an action to enjoin the state engineer and a district
water commissioner from shutting off the water from plaintiffs' irrigation ditch, that there were other
users of the water constituting the source of supply, or others having a right to use all or part of the water
which plaintiffs claimed to have appropriated, the existence of other appropriators could not be presumed
in support of a demurrer to the complaint.
4. Waters and WatercoursesIrrigationInjunction.
Injunction will lie to restrain the state engineer and a district water commissioner from unjustly and
unreasonably depriving appropriators of water for irrigating their lands; no redress being afforded the
appropriators by the water law of 1913 (Stats. 1913, c. 140), inasmuch as the district court cannot take
cognizance of the proceedings of the state engineer by way of appeal as therein prescribed, since the
constitution restricts the appellate jurisdiction of such court to cases appealed from justices' courts and
municipal tribunals.
5. PleadingComplaintConstruction.
In an action to enjoin the state engineer from shutting off water from an irrigation ditch, the
presumption that since the engineer is a public official his acts were legal is not available in support of a
demurrer to the complaint.
6. EvidencePresumptionOfficial Duty.
The law presumes the regularity of official acts of public officers, except where it is sought by such
presumption to take away personal rights of a citizen, or deprive him of his property or place a charge or
lien thereon.
7. InjunctionComplaintSufficiencyVested Rights.
The complaint in an injunction suit was not demurrable, where it set forth a prior vested right and
interference with such right and the injury attendant thereon.
8. InjunctionComplaintSufficiency Against Demurrer.
A complaint for an injunction is not demurrable where, on any state of proof which its allegations
would justify, the court could grant an injunction.
9. PleadingComplaintInferences of Law.
That a pleading may contain inferences of law does not render it demurrable, where it alleges facts
sufficient to show a cause of action.
Appeal from the Fourth Judicial District Court, Clark County; Peter J. Somers, Judge
presiding.
Action for an injunction by Frank L. Knox and others against W. M. Kearney, as State
Engineer, and L. Tanner, as Water Commissioner of Muddy River District. From orders
overruling a demurrer to the complaint and refusing to set aside a temporary injunction,
defendants appeal. Affirmed.
F. R. McNamee and Leo A. McNamee, for Appellants.
Geo. B. Thatcher, Attorney-General, O. J. Van Pelt, District Attorney, Chas. E. Foxley,
and F. A. Stevens, for Respondents.
This is an appeal from an order overruling demurrer to the plaintiff's complaint and from
the order refusing to set aside a temporary injunction. The injunction was granted ex parte
under the verified complaint.
The complaint on which the injunction was granted is some eight paragraphs in length.
The first paragraph alleges that W. M. Kearney is the duly qualified and acting state
engineer of the State of Nevada, and that the defendant, L. Tanner, is acting as water
commissioner for the Muddy River water district.
water commissioner for the Muddy River water district.
Paragraph 2, in substance, alleges that the plaintiffs are the owners of certain parcels of
land situated in the Muddy River Valley in Clark County, State of Nevada, describing said
lands by subdivisions.
Paragraph 3 sets forth the necessity of water to cultivate said lands.
Section 4 is as follows: That more than 200 acres of said land has been continuously,
since the year 1890 by said plaintiffs, and their grantors, as aforesaid, irrigated and rendered
of great value, by the use and appropriation of 300 miner's inches of the water of the stream
known as the Muddy River flowing in a southeasterly course through the Muddy Valley in its
natural channel, and that 300 miner's inches of the waters thereof is necessary for the use of
the said plaintiffs, and the irrigation of their said lands, as aforesaid.
Section 5 of the complaint is as follows: That the grantors and predecessors of said
plaintiffs, to wit, prior to the year 1890, constructed a dam and flume in, on and upon the
Muddy River above the lands herein described with a water ditch of a capacity sufficient to
carry 300 miner's inches of water, connecting said dam with said described lands of plaintiffs
with sufficient laterals to irrigate the same, and thereafter from year to year during the
irrigating season the said plaintiffs and their grantors and predecessors in interest diverted
from the said Muddy River by means of said dam and flume, through the said irrigating ditch,
and appropriated to beneficial use, in the irrigation of the lands above described, 300 miner's
inches of water, which said amount of water is now and at all times heretofore has been,
necessary in the irrigation of the crops of plaintiffs in, on and upon the lands above described,
and that at the time of said appropriation no other person or persons had acquired any right to
said 300 inches of water, and the said water was flowing in said Muddy River unappropriated
and unused and was appropriated by the grantors of plaintiffs.
Section 6, in substance, alleges that the defendants without authority of law therefor and
without right have from time to time entered upon the premises of plaintiffs and closed the
headgate of their flume and ditch and prevented sufficient water, and at times any water, from
flowing out of the Muddy River into the ditch, and that by reason thereof the crops of
plaintiffs have suffered from want of water, and unless the defendants refrain from their acts
in preventing the water so appropriated to flow in their ditch, their crops will die and the land
become valueless.
Section 7 alleges, in substance, that the defendants without authority of law notified the
plaintiffs in writing that within ten days from the 22d day of July, 1913, the defendants would
close the ditch of the said plaintiffs and prevent plaintiffs from diverting or using any water
from the Muddy River, so appropriated by plaintiffs, and would not permit plaintiffs to divert
any water whatsoever from the Muddy River and, it is further alleged, that the defendants
threatened and will, unless prevented by order of court, shut off and prevent plaintiffs from
diverting the water from the said river, and that the same is of great and irreparable damage to
plaintiffs, and further alleging that plaintiffs have no speedy and adequate or other remedy at
law.
Section 8 sets forth the nature of the crop raised on said land.
Pursuant to this complaint the district court issued an injunctin pendente lite. Defendants
moved in the court below to dissolve the injunction on the following grounds:
(1) That the court has no jurisdiction of the subject of the action or of the person of the
defendants or either of them; (2) that the complaint does not state facts sufficient to constitute
a cause of action or to warrant the continuance of said injunction in force; (3) that the law
does not justify the said injunction, or a continuance in force thereof.
At the time of filing the motion to dissolve the injunction, defendants also demurred to the
complaint.
[1] It appears from the complaint that appellants are proceeded against in this action in
their official capacity as state engineer and water commissioner of the Muddy River water
district. It is contended, among other things, that the allegation that appellants have, without
authority of law therefor and without right, * * * closed the headgate of their ditch is a mere
conclusion of law, and not sufficient to warrant the issuance of an injunction. This, in our
judgment, is untenable, inasmuch as the plaintiffs by section 4 set forth the appropriation of
water prior to the passage of the first comprehensive water act enacted in this state. By the
allegations of section 4 of the compliant the diversion and application to beneficial use is
declared to have been consummated on or about the year 1890, and it is specifically alleged
that at the time of said appropriation no other person or persons had acquired any right to the
waters thus appropriated and in use. These specific allegations, constituting the fundamentals
of vested rights, are sufficient in themselves, if supported by evidence and in the absence of a
preponderance of proof to the contrary, to warrant the judgment of a court of competent
jurisdiction in decreeing a vested right.
By sections 6 and 7 of the complaint the allegations of specific interference with a vested
right are set forth.
It is not alleged in the complaint that any water district has been created by the state
engineer under the act of 1913, or any other act; nor is it alleged that an adjudication of either
the plaintiff's water rights or of the relative rights on the Muddy River district has been
established by the engineer. As to whether or not these allegations if affirmatively set up by
way of answer would constitute a sufficient defense to defeat the contention of appellants is
not before us at this time.
[2] For the purpose of considering points of law raised by a demurrer, facts pleaded in a
complaint are considered as true. (Levy v. Ryland, 32 Nev. 463, 109 Pac. 905.)
[3] Courts, in considering demurrers, will not presume beyond the declaration of the
complaint in order to either sustain the complaint or hold the demurrer good.
beyond the declaration of the complaint in order to either sustain the complaint or hold the
demurrer good. Therefore, it does not appear from the complaint in this case, which is all that
is to be considered as to the sufficiency of the demurrer, that there are other water users in the
Muddy River, or others who have the right to use all or any part of the 300 inches alleged to
be appropriated.
We are referred to the case of McLean v. Farmers' High Line Canal Co., 44 Colo. 184, 98
Pac. 16, but in that case the plaintiffs alleged that they owned certain adjudicated priorities.
This is a direct allegation that their water rights have been adjudicated by the courts under the
water law of Colorado prior to the commencement of the action. These adjudications under
the decisions in Colorado must, of necessity, have been made as against other water users. In
that respect the court, in passing upon the sufficiency of the complaint, said:
By section 2448, 1 Mills Ann. St., it is made the duty of the superintendent of irrigation
to distribute the waters in his division in accordance with the rights of priority of
appropriation as established by the judicial decrees entered in the several water districts,
included in such division, and that he shall have general control over the water
commissioners of the districts embraced in his division. The several decrees of the water
districts within a water division are to be treated as one, and the water distributed
accordingly. It is the duty of the superintendent of a water division to make such distribution
by direction to the water commissioners under his control. (Lower Latham D. Co. v. Louden
I. C. Co., 27 Colo. 267, 60 Pac.629, 83 Am. St. Rep. 80.) The law presumes that public
officials discharge their duties in conformity with the statutes, and the burden of showing to
the contrary rests with him who relies thereon. * * * It appearing, then, from the averments of
the complaint that the acts of the defendants of which plaintiffs complain were committed by
them for the purpose of supplying ditches with water in district No. 2, the presumption
attaches that they ordered the headgates of plaintiff's ditches to be closed so as to supply
senior priorities further down the stream; so that the averments of the complaint to which
we have referred do not state any facts from which it is made to appear that the acts of
the water officials which the plaintiff sought to enjoin were not necessary in the
discharge of their official duties."
attaches that they ordered the headgates of plaintiff's ditches to be closed so as to supply
senior priorities further down the stream; so that the averments of the complaint to which we
have referred do not state any facts from which it is made to appear that the acts of the water
officials which the plaintiff sought to enjoin were not necessary in the discharge of their
official duties. (McLean v. Farmers' High Line Reservoir Co., 44 Colo. 190, 98 Pac. 18.)
The complaint in the case in question cannot be subjected to the same criticism as that
referred to in the McLean case, supra. In this case there is no allegation of other
appropriators, and the court will not presume that there may be other appropriators.
[4-5] It is not shown that there are any adjudications decreeing vested water rights in the
Muddy Rive district, nor do these plaintiffs seek to establish their right against the defendant
by reason of any decree or adjudication. Moreover, if any determination had, prior thereto,
been made by the state engineer as to water rights in the Muddy River district, they would not
be such as would preclude the plaintiffs in this case from filing their action under the
allegations therein set forth and securing temporary injunction from an act of the engineer
which might unjustly deprive them of their vested rights. An action of this nature is the only
means of redress available to plaintiffs to protect them from unreasonable or unjust acts on
the part of either the state engineer or the water commissioners, because no redress is
afforded them by the water law of 1913, inasmuch as the district court could not take
cognizance of the proceedings of the state engineer by way of appeal as therein prescribed;
the constitution restricting, as it does, the appellate jurisdiction of the district court to cases
appealed from justices' court and municipal tribunals. This is not such a case that the
allegations of the complaint will be overthrown by the presumption that the state engineer,
being a public official, his acts are in compliance with the law.
are in compliance with the law. Nor will it be presumed to the extent of setting aside the
complaint that in his acts, or threatened acts, the state engineer is performing his duty.
Presumptions are not to be entertained in favor of a public official to overthrow the
allegations of a complaint, in a case such as this, where, if his acts were authorized at all, it
was under a naked statutory power, and apparently had the effect of divesting a citizen of a
valid property right. (Kean v. Cannovan, 21 Cal. 292, 82 Am. Dec. 738; Watkins v.
Havighorst, 13 Okl. 128, 74 Pac. 318.)
[6] As was said by the Supreme Court of Oklahoma in the case of Board of Education v.
Boyer, the law presumes the validity and regularity of the official acts of public officers
within the line of their official duty, as it does the regularity of the acts of private persons, and
this presumption obtains until overcome by proofs, as to all acts involving the performance of
ministerial or administrative duties, except in a case where it is sought to take away personal
rights of a citizen or deprive him of his property or place a charge or lien thereon. (Board of
Education v. Boyer, 5 Okl. 231, 47 Pac. 1090.)
[7] The complaint sets forth a prior vested right, and an interference with that right. It also
sets forth the injury attendant upon the interference. This, of itself, in our judgment, was
sufficient to warrant the court in denying the motion to set aside the injunction and overruling
the demurrer.
Mr. Story, in his work on Equity Jurisprudence, in discussing how far a court of equity has
jurisdiction to interfere in cases of public functionaries exercising special public trust, says:
The court will not interfere to see whether any alteration or regulation which they may direct
is good or bad; but, if they are departing from that power which the law has vested in them, if
they are assuming to themselves a power over property which the law does not give them, this
court no longer considers them as acting under authority of their commission, but treats them,
whether they be a corporation or individual, merely as persons dealing with property
without legal authority."
merely as persons dealing with property without legal authority. (Story's Equity
Jurisprudence, vol. 2, 12th ed. 148.)
[8] As we have already stated, matters of defense which might be relied upon by
defendants in this case cannot be assumed by the court as against the complaint, unless they
appear directly, and a complaint for an injunction is not demurrable, if, on any state of proof
which its allegations justify, the court could grant an injunction. (22 Cyc. 934.)
[9] The fact that a pleading may contain inferences of law will not warrant the sustaining
of a demurrer against it if there be sufficient facts alleged to show a cause of action. Mixed
statements or declarations and legal conclusions of law and of fact will not vitiate a complaint
if it contains sufficient facts to constitute a cause of action. (Clark v. Chicago R. R. Co., 28
Minn. 71, 9 N. W. 75.)
The complaint in this case, in our judgment, contains sufficient allegations of fact to
warrant the court in granting a temporary injunction in the first instance and in denying
appellants' motion to dissolve when the same was made.
The orders of the trial court in overruling the demurrer and in denying the motion to
dissolve the temporary injunction should be sustained.
It is so ordered.
It appears from the complaint that the appellants, respectively, are proceeded against in
their official capacity as state engineer and water commissioner of the Muddy River water
district. There is no specific allegation in the complaint that a water district has been
established in pursuance of law for the said Muddy River. The fact, however, that the
appellants are sued in their official capacities warranted the court below, and warrants this
court, in assuming, for the purposes of the case, that a water district had been established.
that a water district had been established. Section 53 of the water law of 1913 (Stats. 1913, p.
206) provides: The state engineer shall divide the state into water districts to be so
constituted as to insure the best protection for the water user, and the most economical
supervision on the part of the state. Said water districts shall not be created until a necessity
therefor shall arise and shall be created from time to time as the priorities and claims to the
streams of the state shall be determined.
By the provisions of the statute a water district shall not be created until the necessity
therefor shall arise, and not until the priorities on the stream or stream system within the
district shall have been determined.
It is not contemplated that a water district will be established unless there are a number of
water users upon a stream or stream system. When a water district has been established, it is
made the duty of the state engineer to divide, or cause to be divided, the waters of the natural
stream or stream system within the district among the several ditches according to the rights
of each respectively, in whole or in part, and to shut or fasten, or cause to be shut or fastened,
the headgates or ditches, * * * as may be necessary to insure a proper distribution of the
waters thereof. * * * Whenever, in pursuance of his duties, the water commissioner regulates
the headgate to a ditch * * * it shall be his duty to attach to such headgate * * * a written
notice properly dated and signed, setting forth the fact that such headgate * * * has been
properly regulated and is * * * under his control, and such notice shall be a legal notice to all
parties interested in the diversion and distribution of the water of such ditch. * * * (Section
54.)
There is no specific allegation in the complaint that the relative rights of appropriators or
users of the waters of the Muddy River have been determined in accordance with the
provisions of the water law of 1913, which was and is a prerequisite to the establishment of a
water district. That fact, however, must be assumed from the fact that one of the appellants
is sued in his official capacity as water commissioner of such water district.
fact that one of the appellants is sued in his official capacity as water commissioner of such
water district. Conceding that the complaint alleges an appropriation of 300 miner's inches of
water of the waters of the Muddy River, it does not allege that such appropriation is prior in
time or superior in right to other appropriators of the waters of said stream, nor that the
relative rights of respondents have been determined in accordance with law as superior to
other appropriators of the waters of said stream. The allegation in the complaint that at the
time of said appropriation no other person or persons had acquired any right to said 300
miner's inches of water, and the said water was flowing in said Muddy River unappropriated
and unused, and was appropriated by the grantors of plaintiffs, does not amount to an
allegation that the respondents were such appropriators prior in time and right to other
appropriators of the waters of said stream, and that the same has been so determined in
accordance with the provisions of the statute.
The allegation that the appellants have, without any authority of law therefor an without
right, * * * closed the headgate of their flume ditch is a mere conclusion of law. Before a
court is authorized in issuing an injunction against the officials of a water district the facts
should be clearly alleged in the complaint showing the establishment of said district, the
determination of the relative rights of water appropriators or users, and that such officials are
acting in violation of such established rights. In such a case water appropriators or users
whose rights have been determined in accordance with the statute to be prior in time, and
whose rights may be affected by this suit, are necessary parties.
The cases of McLean v. Farmers' H. L. C. & R. Co., 44 Colo. 184, 98 Pac. 16, is
substantially on all fours with the case at bar, and supports the position I have taken.
____________
37 Nev. 404, 404 (1914) State v. Moran
[No. 2132]
STATE OF NEVADA, Ex Rel. A. L. MARTHA HOWE, Relator, v. THOMAS F. MORAN,
District Judge of the Second Judicial District Court of the State of Nevada, in and for the
County of Washoe, Respondent.
[142 Pac. 534]
1. MandamusCompelling Court to Assume Jurisdiction.
Where a district court wrongfully or erroneously divests itself of jurisdiction, or refuses to assume
jurisdiction, mandamus is the proper remedy.
2. DivorceResidenceRelief to Defendant.
Under Civ. Prac. Act, sec. 252 (Rev. Laws, sec. 5194), providing that when defendant interposes a
counterclaim, his right to a provincial remedy is the same as though he were plaintiff, section 259 (Rev.
Laws, sec. 5201), providing that either party may, in the absence of the other, bring a cause to trial and
proceed to judgment, and section 295 (Rev. Laws, sec. 5237), providing that an action may be dismissed
or a judgment of nonsuit entered when the plaintiff fails to appear on the trial or abandons the cause, in
which case judgment shall be rendered upon the merits, where plaintiff, in an action for divorce, failed to
appear at the trial, defendant, who had filed a cross-complaint for divorce and injunction, was entitle to
proceed to judgment for the full relief asked in the cross-complaint, though plaintiff alone had acquired
the requisite residence within the state for the maintenance of an action for divorce.
3. DivorceProof by Defendant of Residence of Plaintiff.
Defendant, in such case, was entitle to prove the residence of the plaintiff in order to support the
jurisdiction of the court to proceed to judgment.
Original proceeding in mandamus by the State, on the relation of A. L. Martha Howe,
against Thomas F. Moran, District Judge of the Second Judicial District, in and for Washoe
County. Writ issued.
Chas. H. Burritt and A. Grant Miller, for Relator.
James Glynn, A. A. Heer, and George S. Brown, for Respondent.
In this proceeding relator, A. L. Martha Howe, prays for a writ of mandamus to issue
against the respondent, as district court judge of the Second judicial district court of the
State of Nevada, to the end that case No.
37 Nev. 404, 405 (1914) State v. Moran
as district court judge of the Second judicial district court of the State of Nevada, to the end
that case No. 10001, entitled Edward C. Howe v. A. L. Martha Howe, be reinstated, and that
respondent be required to hear and determine the same. The original action sought to be
reinstated is one in divorce, in which the plaintiff, Edward C. Howe, filed his complaint and
obtained service of summons pursuant thereto upon defendant A. L. Martha Howe, under the
provisions of our statute for substituted service by publication, and also by personal service
upon the defendant in the city of Washington, D. C., said service being made on the 30th day
of September, 1913. The defendant, petitioner herein, on the 27th day of January, 1914, filed
in the district court a duly verified answer and cross-complaint in said action, in which
cross-complaint petitioner, as defendant, prayed for affirmative relief; by way of absolute
divorce and for an injunction against plaintiff. Thereafter, pursuant to motion on the part of
the defendant, the court made an order directing payment, on the part of the plaintiff, of
certain sums of money as attorney's fees, court costs, and for the taking of depositions.
On the 30th day of January, 1914, the plaintiff filed a verified replication to the answer of
petitioner. Thereafter, on the 7th day of May, 1914, the plaintiff having failed to comply with
the orders of the district court relative to payment of counsel fees and court costs, defendant,
through her attorneys, moved the court for an order directing the said plaintiff to show cause
why he should not be punished for contempt of court for failing therein. Thereafter, on the
18th day of May, 1914, the court made an order directing that proceedings in the action be
stayed until such time as the plaintiff should comply with the orders of the court theretofore
made, or until such time as plaintiff could satisfy the court that he was unable to comply with
said order. Certain showing by way of affidavit was made to the district court by plaintiff,
tending to establish his inability to comply with the order of the court. On the 20th day of
June, 1914, the defendant appeared in the district court and waived all contempt
proceedings in said action against plaintiff.
37 Nev. 404, 406 (1914) State v. Moran
day of June, 1914, the defendant appeared in the district court and waived all contempt
proceedings in said action against plaintiff. The case was set for trial by order of the court for
the 25th day of June, 1914, and on that date the following proceedings took place, as appears
from the reporter's notes:
This being the time fixed for the trial of the above-entitled action, the plaintiff, by his
attorney, Jerome L. Van Derwerker, Esq., and the defendant and her attorney, Chas. H.
Burritt, Esq., being present in court in response, to the question of the court, Are you ready
to proceed?' plaintiff's attorney made a statement to the court regarding the whereabouts of
the plaintiff. Defendant moved the court to proceed to trial upon defendant's cross-complaint,
offering to prove plaintiff's residence by the testimony of other witnesses. Motion denied.
In denying defendant's motion to proceed to trial on her cross-complaint, the court filed a
written decision, which is in part as follows.
It appearing to the satisfaction of the court that the plaintiff is without the jurisdiction of
the court, and that this case has been set for trial some six weeks prior to this date, and that
the plaintiff, according to the statement of his counsel, was repeatedly informed of that fact,
whereupon the defendant requested the court to hear her counterclaim offering to prove the
residence of the plaintiff by other witnesses than the plaintiff, and, the court examining the
record and finding that the plaintiff was in contempt of court for not complying with the
orders of the court made heretofore, and not appearing in the proper manner to purge himself
of such contempt, and not appearing personally to establish his residence, the court
thereupon, notwithstanding the counterclaim of the defendant and the offer of the defendant,
ordered the case dismissed on the merits, for the reason that the court was of the opinion that
the plaintiff had no standing in court, and the defendant could not, under such circumstances,
prove his residence, and the defendant being a nonresident of this state. Whereupon, of the
court's own motion, the case is hereby dismissed.
37 Nev. 404, 407 (1914) State v. Moran
[1] It is the contention of respondent that mandamus will not lie in this case. This court,
however, has settled that question to the effect that where the district court wrongfully or
erroneously divests itself of jurisdiction, or refuses to assume jurisdiction, mandamus is the
proper remedy. (Floyd and Gutherie v. Sixth Judicial District Court, 36 Nev. 349.)
[2] Section 252 of the civil practice act, being section 5194 of the Revised Laws, provides:
When the defendant interposes a counterclaim, and thereupon demands an affirmative
judgment against the plaintiff, his right to a provisional remedy is the same as in an action
brought by him against the plaintiff, for the cause of action stated in the counterclaim, and
demanding the same judgment; and for the purpose of applying to such a case the provisions
of this act relating to provisional remedies, the defendant is deemed the plaintiff, the plaintiff
is deemed the defendant, and the counterclaim so set forth in the answer is deemed the
complaint.
Section 259 of the civil practice act, being section 5201 of the Revised Laws, provides:
Either party may bring the issue to trial, or to a hearing, and in the absence of the adverse
party, unless the court for good cause otherwise direct, may proceed with his case and take a
dismissal of the action, or a verdict, or judgment, as the case may require.
Section 295 of the civil practice act, being section 5237 of the Revised Laws, provides:
An action may be dismissed, or a judgment of nonsuit entered in the following cases:
1. By the plaintiff himself at any time before trial, upon the payment of costs, if a
counterclaim has not been made. * * *
2. By either party upon the written consent of the other.
3. By the court when the plaintiff fails to appear on the trial, and the defendant appears
and asks for the dismissal.
4. By the court when upon trial and before the final submission of the case the plaintiff
abandons it.
37 Nev. 404, 408 (1914) State v. Moran
5. By the court, upon motion of the defendant, when upon the trial the plaintiff fails to
prove a sufficient case for the court or jury. The dismissal mentioned in the first two
subdivisions shall be made by an entry in the clerk's register. Judgment may thereupon be
entered accordingly. In every other case the judgment shall be rendered on the merits.
In the case of Wuest v. Wuest, 17 Nev. 217, 30 Pac. 886, this court, speaking through Mr.
Justice Belknap, said: The statute of this state is silent as to the right of defendants (in
divorce actions) to affirmative relief. In the absence of express legislation upon the matter a
defendant may have such relief as the practice of the English courts would have afforded him,
upon the ground that such practice has been adopted as part of our law.
In the case of Wuest v. Wuest, Mr. Bishop's Commentaries on the Law of Marriage and
Divorce were quoted approvingly, to the effect that: One proceeded against for divorce a
mensa et thoro, or for nullity of the marriage, or for restitution of conjugal rights, not only
could bring forward a competent wrong done by the other party in defense of the suit, but if
he succeeded in his proofs, he could have the proper sentence rendered in his favor, as though
he were the original plaintiff.
By a strong line of decisions, under statutes, in most instances, similar to those of ours
relative to marriage and divorce, it has been held that a statute making residence of the
plaintiff a prerequisite to the exercise of divorce jurisdiction does not preclude a nonresident
defendant from filing a cross-bill and obtaining a decree of divorce against the plaintiff. (14
Cyc. p. 589, and cases there cited.)
In the case of Jenness v. Jenness, 24 Ind. 355, 87 Am. Dec. 335, the supreme court of that
state having before it a question very much analogous to the one presented in this case and a
statute which provided: Divorces may be decreed * * * on petition filed by any person who,
at the time, * * * shall have been a bona fide resident of the state one year previous to the
filing of the same, and a bona fide resident of the county at the time of filing such petition,"
it was held that the court had jurisdiction to try and determine a cross-petition by reason
of having acquired jurisdiction to try the petition of plaintiff, and that the dismissal of that
petition did not oust that jurisdiction, and that it was not necessary for the defendant to
allege or prove that he or she was a bona fide resident of the state for one year previous
to the filing of the said cross-petition.
37 Nev. 404, 409 (1914) State v. Moran
time of filing such petition, it was held that the court had jurisdiction to try and determine a
cross-petition by reason of having acquired jurisdiction to try the petition of plaintiff, and that
the dismissal of that petition did not oust that jurisdiction, and that it was not necessary for
the defendant to allege or prove that he or she was a bona fide resident of the state for one
year previous to the filing of the said cross-petition.
This decision might be said to rest upon a special provision of the statute of Indiana, but it
is our judgment that, regardless of the provision of the statute, the reasoning set forth in that
case is good as applicable to the matter at bar. In that case the court said: Thus, while our
statute is intended to prevent nonresidents from making use of our courts to perpetrate frauds
upon their unsuspecting wives or husbands, by coming here to petition for divorces, it, at the
same time, arms them with every weapon of defense which is afforded to our own people,
when brought into court at the suit of those whose bona fide resident here gives us
jurisdiction.
To the same effect is the case of Sterl v. Sterl, 2 Ill. App. 223, wherein it is held that, as a
matter of law, a court of equity, having acquired jurisdiction of the parties and of the
subject-matter of the suit, will retain and exercise such jurisdiction until the equities of all
parties are meted out to them. To the same effect is the case of Pine v. Pine, 72 Neb. 464, 100
N. W. 938, 9 Ann. Cas. 1198.
The statutes of the State of Michigan provide: No divorce shall be granted unless the
party exhibiting the petition or bill of complaint therefor shall have resided in this state one
year immediately preceding the time of exhibiting such petition or bill, or unless the marriage
was solemnized in this state, and the complainant shall have resided in this state from the
time of such marriage to the time of exhibiting the petition or bill, and when the cause for
divorce occurred out of this state, no divorce shall be granted unless the complainant or
defendant shall have resided within this state two years next preceding the filing of the
petition or bill, and no proofs or testimony shall be taken in any cause until four months
after the filing of such petition or bill for divorce, except where the cause for divorce is
desertion, or when the testimony is taken conditionally for the purpose of perpetuating
such testimony."
37 Nev. 404, 410 (1914) State v. Moran
testimony shall be taken in any cause until four months after the filing of such petition or bill
for divorce, except where the cause for divorce is desertion, or when the testimony is taken
conditionally for the purpose of perpetuating such testimony. (3 How. Mich. Sta. sec. 6231.)
In a case presenting conditions somewhat similar to the one at bar, the Supreme Court of
Michigan cited approvingly the case of Jenness v. Jenness, 24 Ind. 359, 87 Am. Dec. 335,
and held, in substance, that it would be a reasonable construction of the Michigan statute to
say that, where the complainant in a divorce proceeding has resided in the state the full
statutory period and the defendant has appeared in the cause, the court has jurisdiction over
the parties and the right to dispose of the issue between them upon its merits and according to
equity, even if in order to do so it is necessary to grant a decree of divorce to the defendant
for the reason stated in the answer filed in the nature of a cross-bill, (Clutton v. Clutton, 108
Mich. 267, 66 N. W. 52, 31 L. R. A. 160.)
In the case of Ferry v. Ferry, 9 Wash. 239, 37 Pac. 431, the Supreme Court of Washington
cited approvingly the case of Sterl v. Sterl, 2 Ill. App. 223, and sanctioned the expression of
the latter court in the matter and adopted the rule therein cited.
In the case at bar, the defendant having appeared and having joined issue by answer and
having filed her cross-complaint praying for affirmative relief, the proceeding is one in
personam, and a dissolution of the marriage status may be decreed. (Bishop's Marriage &
Divorce, sec. 25.)
In the case of Gibbs v. Gibbs, the Supreme Court of Utah, under statutory provisions
relative to marriage and divorce quite similar to those of ours, held, in substance, that as the
action was one in personam, in a case in which the defendant appeared, answered, and
submitted his defense upon the merits, there was a waiver of objection to the venue, the court
thereby acquired jurisdiction of his person and had authority to and should have rendered a
decree upon the merits. (Gibbs v. Gibbs, 26 Utah, 382, 73 Pac. 641.)
37 Nev. 404, 411 (1914) State v. Moran
That a nonresident defendant will not be deprived of his right to relief in a cross-bill by the
dismissal or discontinuance of the original petition has been asserted by a strong line of
authorities. (14 Cyc. 589.)
Under the provisions of section 252 of the civil practice act, heretofore set forth, the
defendant in this case, petitioner herein, after filing her cross-complaint, asking for a
provisional remedy in the injunction, must be deemed and held to be a plaintiff as to all
matters contained therein, and the plaintiff is deemed the defendant. The answer and
cross-complaint in this case was served upon the plaintiff within this state, and he thereafter
answered the same by way of replication. So far as the pleadings in this case go, the parties
and each of them were, by their own acts, brought within the jurisdiction of the court, and the
court, therefore, had the right, and it was its duty, to proceed and determine the matter upon
the issues presented.
[3] The residence of the plaintiff, like any other matter of fact, was one susceptible to
proof. The personal appearance and testimony of plaintiff was not the only means of proving
his residence for the time required by statute. That was an element in the case which the
defendant, having brought herself within the jurisdiction of the court, might prove, if she saw
fit. In fact, it was incumbent upon her, if she sought to proceed under her cross-complaint, to
establish jurisdictional facts, where those prerequisites had not been established by the
plaintiff. Under all the circumstances of this case we see no reason why the residence of the
plaintiff could not be established by satisfactory proof coming from the defendant, or from
evidence offered in her behalf.
There was no hearing in this case, the record discloses that no evidence was taken, and the
court in dismissing the cause did so without a hearing either as to jurisdictional matters or on
the merits. It thereby wrongfully divested itself of jurisdiction.
Mandamus being the proper remedy in such a case, it follows that the writ should issue;
and it is so ordered.
____________
37 Nev. 412, 412 (1914) State v. Scott
[No. 2094]
STATE OF NEVADA, Respondent, v. BERT SCOTT,
Appellant.
[142 Pac. 1053]
1. HomicideTrialInstructions.
An instruction that self-defense is an affirmative defense and that before the jury can acquit on that
ground it must appear that the killing of the deceased was not in necessary self-defense, is a clear
misstatement of the law.
2. Criminal LawAppealHarmless ErrorClerical Errors.
That a misstatement of the law in the court's instructions in a murder case was due to a clerical error
will not render the error harmless.
3. Criminal LawAppealHarmless ErrorPresumptions.
Where the court gives several instructions on the same subject, some being correct and others
erroneous, injury must be presumed, unless the record clearly shows otherwise.
4. HomicideProsecutionEvidenceSufficiency.
In a prosecution for homicide, evidence held insufficient to sustain a conviction of murder in the first
degree.
5. HomicideAppealHarmless Error.
Where the evidence was insufficient to justify accused's conviction of murder in the first degree and
the court erroneously charged on his contention of self-defense, a conviction of murder in the first degree
shows that the charge was prejudicial.
6. HomicideSelf-DefenseRight Of.
One attacked by another has the right to use his own judgment in determining what is necessary to
repel the attack, and his right to kill his assailant in self-defense cannot be limited by what may appear to
the jury to have been absolutely necessary.
7. HomicideEvidenceDying Declarations.
The preliminary proof necessary for the admission of a dying declaration is for the court alone, and a
request that the jury be withdrawn while such evidence is being heard should be granted.
8. HomicideEvidenceDying Declarations.
Where the admission of a dying declaration is sought, it is not the province of the court to determine
from the preliminary proof whether such declaration has been made, but whether the preliminary
evidence warrants its submission to the jury, who are to judge whether the declaration is entitled to
weight as a dying declaration.
9. Criminal LawTrialStatements of JudgeInstructionWhat Are.
In a prosecution for homicide, where the state offered a purported dying declaration, oral statements
by the court as to the nature of dying declarations and as to the weight of the one offered, made in
the presence of the jury upon admitting the declaration in evidence, must be
considered as an uncalled-for instruction.
37 Nev. 412, 413 (1914) State v. Scott
offered, made in the presence of the jury upon admitting the declaration in evidence, must be considered
as an uncalled-for instruction.
10. Criminal LawTrialInstructions as to Dying DeclarationsWeight of Evidence.
It is error for the court to inform the jury that a dying declaration is entitled to the same weight as
testimony under oath subject to cross-examination, because of the imminence of death doing away with
the necessity of an oath.
11. Criminal LawTrialInstructionsWeight of Evidence.
Remarks by the trial court, upon admitting in evidence a purported dying declaration, as to the weight
of the declaration, and on the question whether it was made when the declarant believed death imminent,
are erroneous, invading the province of the jury in violation of Const. art. 6, sec. 12, directing that the
court charge only on matters of law.
12. Criminal LawTrialConduct of Counsel for State.
While a prosecuting attorney should be vigorous in the prosecution of crime, his duty is not solely to
convict, and he should protect the rights of an accused person and not seek to take unfair advantage.
Talbot, C. J., dissenting.
Appeal from Sixth Judicial District Court, Humboldt County; Edward A. Ducker, Judge.
Bert Scott was convicted of murder in the first degree, and he appeals. Reversed and
remanded.
J. M. Frame, for Appellant.
Geo. B. Thatcher, Attorney-General, E. T. Patrick, Deputy Attorney-General, and J. A.
Callahan, District Attorney, for Respondent.
The defendant was convicted of murder in the first degree and his penalty fixed by the jury
at life imprisonment. The court refused to grant him a new trial; hence this appeal.
From the record on appeal it appears that the deceased, Ben Swago, was associated in
business with one Fouts, in the town of Rochester; the business consisting of a saloon and
restaurant in the same building. The defendant Scott, as appears from the transcript, was
employed by Fouts to represent him and in a way to oversee the business in the interests of
Fouts.
37 Nev. 412, 414 (1914) State v. Scott
business in the interests of Fouts. On the evening of the 24th of February, 1913, the
establishment was about to open, and on that occasion the bar was opened; the restaurant
portion not having been completed. In the early part of the evening, the defendant, while in
the kitchen at the rear of the barroom in a somewhat intoxicated condition, had urinated upon
the floor. For this act he was accosted by the deceased. The defendant replied with angry and
foul words, telling deceased, in effect, not to interfere with him or he would put him out of
there; that he was the man that was making the money, whereupon the deceased struck the
defendant several times. Bystanders intervened and stopped the fight and the two advanced to
the front of the building, in which position the bar was located, and there, it appears, that a
second altercation occurred, in which words was uttered, but no blows struck. At this time a
woman by the name of Alice Miller, a prostitute with whom the deceased, Swago, had been
consorting while in the town of Rochester, injected herself into the altercation between
deceased and defendant, and after the second trouble, which occurred in the front of the
saloon, Swago, the deceased, and the Miller woman left the saloon by the front door, passing
out into the street. The record discloses that the defendant, after the second altercation, went
behind the bar and took therefrom a revolver and walked out to the front door. At the front
door, or thereabouts, the third altercation took place, in which the deceased was shot by the
defendant.
The record in this case discloses evidence produced by the state, depicting the
circumstances of three distinct altercations occurring in succession between the deceased and
the defendant, in each of which the state's evidence undeniedly shows the deceased to have
been the aggressor.
It is the contention of appellant that the verdict of murder in the first degree, entailing life
imprisonment, is not supported by the evidence, as disclosed at the trial of this case. With this
phase of the case we shall deal later.
37 Nev. 412, 415 (1914) State v. Scott
At the trial of this case in the court below, the defendant interposed self-defense in
justification of his act.
The evidence discloses an alleged dying declaration, made by the deceased, Swago,
introduced by the state and in part reading:
I am awful sick man and I might die before midnight. I don't see my way through. In
Ollie's place I heard Scott say I show them how to run the joint. * * * When he told me that I
couldn't stand it any longer so I hit him with my fist, then he rushed for a gun, and I walked
out, and I was going back in again Scott come out of the door with a gun in his hand. His
hand and gun were both in his coat pocket. He had the gun in his right hand. I saw that I
couldn't get away so I ran in and clinched with him. I threw my arms around him so that I
could protect myself. He stuck the barrel of the gun against my stomach and shot me. I think
he shot me twice, but don't know. When he came out of the door with his hand on his gun he
came towards me and I thought he was going to kill me. When Scott come out of the door he
said something, but I don't know what he said. I was too much excited. After I slapped him in
the kitchen I did not strike or threaten him again. When he come out of the door with the gun
I thought that couldn't put him out and had to clinch with him to protect myself.
The phase of the altercation, as touched upon briefly in the dying declaration, is, to some
extent, borne out by the testimony of other witnesses. It appears from the testimony of Alice
Miller that a second altercation took place at the bar in the front part of the building. She says
in her testimony, in answer to interrogatories propounded by the prosecuting attorney
(referring to Scott):
Benexcuse my languageI says, Ben, the son of a bitch is going for his gun,' and so
Ben went right after him, and he caught a hold of him, I judge just within about four feet of
the bar, and at the same time five or six fellows rushed up and grabbed Mr.
37 Nev. 412, 416 (1914) State v. Scott
fellows rushed up and grabbed Mr. Swago again, and pulled him away from Mr. Scott, and
held him you might say in a vise.
Later in the same statement she said:
Some one got a hold of Mr. Swago's arm, and I says, Come on then, let us get out of here
quick,' and I went right out the front door, and Mr. Swago right after me, and he had gotten, I
would judge, eighteen feet away from the house, and I walked straight out and walked off to
the left, and I says, Ben, come on, let us make a run, for he is going to get you sure'; and he
says, just wait a minute.' And I stood there and looked back of the house, and it kind of
looked to me like he was studying, and I says: Don't stand there. Come on, let us go.' And
just then Mr. Scott made a run right out of the door, and, as he stepped off of the porch, there
was a sort of little step in front of the saloon, and as he stepped off of the porch, and he came
out, with his hand in his right-hand overcoat pocket, with the gun in his hand, and I holloed to
Ben again. There is a gun, look out!' And he ran to him, and he threw his left hand at Mr.
Scott's right hand.
At another place in her testimony, referring to the altercation in the rear of the room, she
said:
And I grabbed a hold of Mr. Swago, and I stood there with my arm around him, and, as
soon as Mr. Scott was released from these fellows that were holding him, he turn right around
there, and he started right this way.
Q. Scott did? A. Yes, sir; and at that time was when I told Mr. Swago to get him, that he
was going for his gun, and I would judge about there, in fact almost in front of the door, is
where Mr. Swago got him again, that is, got a hold of him, and he held him, and there were
four or five fellows interfered again, and took Mr. Swago away from him, that was away from
Mr. Scott, that is from fighting. Then I ran again into Mr. Swago right here, and I caught a
hold of his right arm, and I says: Come on, Ben; let us get out of here. He is going to get
you.' And at the same time Mr. Scott had already come behind the bar up to this end, and he
was standing right there when I was asking Mr.
37 Nev. 412, 417 (1914) State v. Scott
behind the bar up to this end, and he was standing right there when I was asking Mr. Swago
to leave the house.
Q. State whether or not that is where the defendant was when you and Swago left the
house? A. He washe was standing right there with both hands underneath the bar.
Referring to the immediate incident of the shooting outside the door of the saloon, the
witness Miller further states:
I told him to look out, there was the gun again.'
Q. Telltell then what the two men did. A. Then Mr. Swago rushed into him, and he
took his right hand, that is with his left hand and grabbed for the gunright for the gun, and
the first shot went off immediately after they came together, and the next shot followed very
shortly, and I saw Mr. Scott's hand come down the next time.
At another place she testified:
Q. Now will you illustrate and give the position of the two men when the shot was fired?
A. Yes, sir (indicating). Mr. Swago was standing like this with both of his hands in his
pocket.
Q. That was before he started towards Mr. Scott? A. Yes, sir.
Q. Yes. A. Just standing sort of a loose attitude of this kind, and as Mr. Scott came out
the door, and I holloed to Mr. Swago to look out, there was the gun,' Mr. Swago started to
pull his hands out of his pockets, and started right towards Mr. Scott, and Mr. Scott had a gun
in his hand. I don't think he stepped over two or three steps, and Mr. Swago threw his left
hand up, up to Mr. Scott to get the gun, he come out with in his right hand.
Q. Who did? A. Mr. Swago. He grabbed the gun, and then the shot went off, just as the
first shot went off, and the second shot followed immediately afterwards.
On cross-examination, the witness, being interrogated as to the movements of herself and
the deceased after they left the front door of the saloon, testified as follows: "Q.
37 Nev. 412, 418 (1914) State v. Scott
Q. Why did you and Swago separate when you got outside of the saloon in front of the
saloon? A. Because I was trying to make him come around and get behind the salon and get
away, and he would not do it. He stood off right out from the saloon.
The witness Miller was the principal witness for the state, and her testimony, taken in
connection with the dying declaration introduced in evidence, discloses three events
happening in succession, in each one of which the deceased appears to have been the
aggressor.
[1-3] The plea of the defendant in this case being that of self-defense, the court gave
several instructions bearing upon the law of self-defense in the abstract, and especial
objection is raised by appellant herein to instruction No. 31, given by the court at the request
of the state. It is as follows:
You are instructed that it is not necessary for the state to prove that the defendant did not
kill Ben Swago in necessary self-defense.
Self-defense is an affirmative defense, and before you can acquit the defendant on that
ground it must appear from the evidence in the case sufficient to raise in your minds a
reasonable doubt that the killing of the deceased, at the time and place alleged in the
indictment, if he was so killed, was not in necessary self-defense.
If you find from the evidence beyond a reasonable doubt, that the defendant, at the time
and place and in the manner alleged in the indictment, killed Ben Swago, named in the
indictment, and if you further find that there is no evidence that the defendant, at the time he
did so, acted under the influence of fear that his own life was in danger or that he was in
danger of receiving great bodily harm from said Ben Swago, and that the killing of said Ben
Swago was absolutely necessary to prevent it, then you must find the defendant guilty.
The second paragraph of this instruction contains a positive misstatement of the law.
Sheared of all qualifying statements it reads: Self-defense is an affirmative defense, and
before you can acquit the defendant on that ground it must appear that the killing of the
deceased was not in necessary self-defense.
37 Nev. 412, 419 (1914) State v. Scott
ground it must appear that the killing of the deceased was not in necessary self-defense. It
requires no discussion of the law of self-defense to determine that this assertion, as given to
the jury as an instruction of law applicable to the plea interposed by the defendant, was a clear
misstatement of the law. It might be contended that this was a clerical error; but in cases of
this kind, where a court seeks to instruct the jury on matters of law, if a clear misstatement of
a legal principle appears, the fact that this is a clerical error will not relieve the injuries that
might accrue therefrom. It might be contended that by other instructions given by the court
the law was correctly stated. This court, as well as other courts, has repeatedly held that
where a record in a criminal case shows that the court differently defined the law upon any
given subject, one clause being correct, the other erroneous, that injury must be presumed to
follow from such a state of facts, unless the record clearly shows that no injury resulted
therefrom.
[4] The evidence in this case, in our judgment, is not sufficient in itself to support the
verdict of murder in the first degree. The testimony of the state's witnesses, of whom the
witness Miller was the principal witness, discloses that the deceased, Swago, was the
assailant in the first instance. Whatever the acts or conduct of the defendant might have been,
they were not, in our judgment, sufficient to warrant the assault of Swago in the first
altercation, which took place in the rear of the room. It is manifest from the evidence that the
witness Miller, the consort of the deceased, was not an impartial bystander on the occasion of
this trouble. Her testimony relative to her utterances before the shooting indicates that, being
encouraged more or less by the woman, he was a least a willing participant in the successive
altercations. She says: Ben, the son of a bitch is going for his gun,' and so Ben went right
after him.
Referring again to this incident, she says: And at that time was when I told Mr. Swago to
get him, that he was going for his gun, and I would judge about there, in fact, almost in front
of the door, is where Mr.
37 Nev. 412, 420 (1914) State v. Scott
fact, almost in front of the door, is where Mr. Swago got him again.
While the defendant had the opportunity to shoot deceased when the latter approached
him, he did not do so. The shots were not fired until after the deceased had grappled
defendant and the struggle had commenced.
[5] The evidence in this case pointing as it does to a less degree of guilt than that of
murder in the first degree, it is manifest that the jury was led by something other than the
evidence to render a verdict of first degree.
The second paragraph of the instruction No. 31 is a clear misstatement of the law
applicable to self-defense, and, in view of the fact that the court instructed the jury the jury
must receive as law what is laid down as such by the court, the natural presumption becomes
conclusive that the jury did consider the erroneous instruction. Whether this instruction in its
form as given either misled the jury in arriving at the verdict, or confused them as to what the
law really was, is immaterial; but either condition was prejudicial to the defendant in this
case.
As was said by this court, speaking through Mr. Chief Justice Lewis, in the case of State v.
McGinnis, 5 Nev. 337: We are not fully satisfied that it misled the jury. Very serious doubts
may be entertained as to that. Still, in a criminal case, any ambiguity which may have a
tendency to mislead the jury should entitle the prisoner to a new trial.
As said by Mr. Justice Hawley, speaking for this court in the case of State v. Ferguson:
The law does not conclude the rights of individuals or parties upon any such uncertain
grounds. Its utmost effort is accuracy, as far as it may be attained through fallible agencies,
and then its mission is complete and its conclusions irrevocable. (State v. Ferguson, 9 Nev.
114.)
[6] The third paragraph of instruction No. 31 is objectionable inasmuch as it instructs that,
unless the killing appeared to the jury to be absolutely necessary, they must find the
defendant guilty.
37 Nev. 412, 421 (1914) State v. Scott
they must find the defendant guilty. An instruction very similar to this was dealt with in the
case of State v. Ferguson, supra, and in that case Mr. Justice Hawley quoted approvingly
from State v. Collins, 32 Iowa, 39, to the effect:
The inquiry is not whether the harm apprehended was actually intended by the assailant,
but was it actual and real to the accused as a reasonable man as compared with danger remote
or contingent. By the frequent use of the words absolutely necessary,' as found in the
instructions and charge, the jurors may have drawn the inference that before they would be
justified in acquitting the defendant it must appear to them that the killing of deceased was
absolutely necessary. This view of the case would virtually deprive a defendant of a
reasonable exercise of his own judgment in determining from all the circumstances what was
necessary to be done for the protection of his person or his lifea right which the law confers
upon every individual, but one that must always be exercised at his peril, subject to revision
by a jury of his peers.
To the same effect and following a strong line of decisions is the case of Hawkins v. U. S.,
3 Okl. Cr. 651, 108 Pac. 561.
The case of State v. Ferguson, supra, was quoted from at length and approvingly by Mr.
Justice Ross, speaking for the United States Circuit Court of Appeals of the Ninth Circuit of
the United States, in the case of Owens v. U. S., and the rule as announced in the case of State
v. Ferguson, in our judgment, is the proper rule applicable to the instruction in question.
The inquiry for the jury is: Did the defendant, acting as a reasonable man, upon the
appearances of the existing conditions at the time of the encounter, believe at that time that it
was necessary for him to commit that act in order to protect himself? An instruction upon the
rule of self-defense which failed to set forth the above qualification is clearly erroneous.
Whatever might be said as to the court clearly setting forth the rule in other instuctions,
this error in instruction No.
37 Nev. 412, 422 (1914) State v. Scott
said as to the court clearly setting forth the rule in other instuctions, this error in instruction
No. 31 could not be cured thereby. (State v. Vaughan, 22 Nev. 285, 39 Pac. 733; Owens v. U.
S., 130 Fed. 279, 64 C. C. A. 525.)
Appellant assigns as error the remarks of the trial court in the presence of the jury, on the admission of the
dying declaration. As appears from the record, the dying declaration was offered by the state, through the
witness Dr. Kitchen, who it appears was the physician in attendance upon the deceased and in whose presence
the dying statement was made. In interposing his objection to the offer, counsel for appellant requested that the
jury should retire while the matter was being presented to the court, to which suggestion the court said:
The CourtWhat do you mean? Do you desire to make an argument?
Mr. PercyIn regard to the admission of this statement; yes, sir. It is a purely legal
question.
The CourtI cannot see how that can affect the jury in that case.
Mr. PercyWell, if the court so desires. They have already heard the testimony
concerning it. We submit to your honor's ruling then, and we will submit to your honor the
law.
At the conclusion of a prolonged argument, the court in the presence of the jury made the
following remarks:
The CourtThe admissibility of these dying declarations lies in the exception to the
hearsay rule, and it is based solely on the question of necessity, the necessity of preserving
evidence, which would otherwise become a loss through the death of the declarant before
having time to get his testimony into court.
There are two conditions which are absent from a dying declaration, which are present
when a witness is giving his testimony in court. That is, the declarant is not under a solemn
oath before a justice, and the second condition is the defendant does not have the opportunity
to cross-examine the declarant upon the testimony that he has given in the dying declaration.
Consequently, the law having seen the necessity of the admission of dying declarations in
a case of homicide has, as a matter of necessity, dispensed with the cross-examination,
and the law has laid down the rule that when a declarant is under the fear of death, and
in the presence of imminent death, and realizes that this death is imminent, that such a
situation as that creates in the mind of the declarant, who realizes that he is about to go
before his Maker, an obligation which is as binding as an oath administered in a court of
justice.
37 Nev. 412, 423 (1914) State v. Scott
law having seen the necessity of the admission of dying declarations in a case of homicide
has, as a matter of necessity, dispensed with the cross-examination, and the law has laid down
the rule that when a declarant is under the fear of death, and in the presence of imminent
death, and realizes that this death is imminent, that such a situation as that creates in the mind
of the declarant, who realizes that he is about to go before his Maker, an obligation which is
as binding as an oath administered in a court of justice. But the cross-examination, as a matter
of course, is always absent, and consequently the courts do not admit these dying declarations
unless the foundation is clearly laid that the declarant was under and in the presence of
immediate dissolution, that he realized that he had no hopes of recovery, and that he realized
that death was imminent.
Of course, as to what is the meaning of imminent death varies under the circumstances of
every case. I know in some cases dying declarations have been admitted when the declarant
did not die for six weeks or two months after the making of the statement, but the foundation
was so clearly laid that at the time he made the statement, he was under and in the presence of
impending death, and that the court deemed the foundation sufficient.
Now in this case, considering all of the circumstances which have been placed in
evidence before the court, from which the court must draw his conclusion as to whether the
declarant was under and in the presence of immediate dissolution, and in the presence of
impending death, and had no hopes of recovery, I have come to the conclusion that the
foundation laid has been sufficient. I draw it from all of the circumstance related by the
doctor here; and I draw it from the statement made by the deceased immediately after, or
shortly after, he received the wound, and the statement made to the witness Mitchell who
testified here when he came up to him he was lying on his back, and he stated, I am killed.' It
is evident at that time that he thought that death was approaching.
37 Nev. 412, 424 (1914) State v. Scott
approaching. I draw it from the character of the wound which the doctor has described, the
wound made by the bullet which penetrated almost the entire body of the declarant; from the
location of the wound, and the organs which it penetrated; and from the fact that the declarant
did die shortly after he made the statement, within about thirty hours; and further from the
statement of the declarant himself. He had received a violent wound, a wound which was
sufficient to prostrate him upon the ground on his back, and from which he was unable to rise
until assisted, and, when assistance came to him, immediately the declarant stated that he was
killed, and afterwards following it up by the statement testified to by the doctor, that he was
done for, and that he could not get well.
Mr. HardyWill your honor receive a little testimony before passing upon the question
finally?
The CourtI thought it had been submitted to me.
Mr. HardyI would like to put on another witness.
The CourtThat is hardly the proper way to do, to wait until the court has indicated its
decision, and then ask to offer further testimony. I do not think counsel can lie back and
speculate on what the decision of the court is going to be, and then ask to offer further
testimony afterward.
Mr. HardyThat is not the purpose of this. I did not know that your honor was going to
render a decision at this time.
The CourtIt was submitted to me.
Mr. HardyI did not want to interrupt the court, until I found it was evident you were
deciding the question.
The CourtThe court would naturally conclude after the argument had been made that
the matter was submitted. Do you desire to reopen the matter?
Mr. HardyNo, sir.
The CourtI will say, if you insist upon it I will permit you to open up the matter again.
Thereafter the defendant, calling the witness Robert Ernst to testify relative to the acts
and utterances of the deceased prior to the taking of the dying statement, of which the
following proceedings took place:
37 Nev. 412, 425 (1914) State v. Scott
Ernst to testify relative to the acts and utterances of the deceased prior to the taking of the
dying statement, of which the following proceedings took place:
Mr. Hardy (attorney for appellant)Q. Well, did he say anything to you about whether he
expected to live or die? A. Well, he told me that he expected to die.
Q. Well, did he say anything about what he proposed to do. A. He said if he lived
Mr. CallahanI object to that as incompetent, I object to it as being incompetent,
irrelevant, and immaterial, and too remote, and having no bearing upon the admissibility of
the statement.
The CourtI doubt very much as to the admissibility of this statement. I think I will
exclude the jury for a few minutes.
At that time the court excluded the jury from the courtroom, and further hearing of
testimony offered by the defendant, through the witness Ernst, was taken on the subject.
[7-8] The preliminary proof necessary to establish the predicate for the admission of a
dying declaration is submitted to the court, and, where request is made that that question be
determined in the absence of the jury, the request should be granted. If the preliminary
evidence is produced in the presence of the jury and the court fails to admit the same,
irreparable injury may be wrought to the defendant. (Westbrook v. People, 126 Ill. 81, 18 N.
E. 304; People v. White, 251 Ill. 75, 95 N. E. 1036; Hawkins v. U. S., 3 Okl. Cr. 651, 108
Pac. 561.)
The Supreme Court of Oklahoma, in passing upon this question in the case of Hawkins v.
U. S., supra, remarked: If such proof is made and is sufficient, then the jury should be
recalled, and both the preliminary evidence and the declaration should be given before them.
If the preliminary proof is not sufficient, neither the declaration nor any part of the
preliminary evidence, unless the latter is competent for some other purpose, should be given
to the jury.
It is not the province of the court to determine that a dying declaration has been made,
but only that the preliminary evidence warrants the submission of that question to the
jury.
37 Nev. 412, 426 (1914) State v. Scott
a dying declaration has been made, but only that the preliminary evidence warrants the
submission of that question to the jury. If the preliminary evidence clearly shows that the
proposed declaration was not made in accordance with the rules rendering such a declaration
admissible, it is, of course, the duty of the court to decide that the preliminary evidence
offered is insufficient to warrant its submission to the jury. If there is a substantial conflict in
the evidence, the court should submit the whole matter to the jury under proper instructions.
It is the province of the jury to finally determine from the evidence whether a dying
declaration has in fact been made and the weight it is entitled to.
[9] In considering the statements made by the court relative to the admissibility of the
dying declaration, three questions present themselves:
FirstWas the statement made by the court in the presence and hearing of the jury of the
nature of an instruction as to the law applicable to a phase of the case? If so, not being in
writing, was it error for the court to so instruct?
SecondWas the statement made by the court on the question of the admission of the
dying declaration an erroneous statement of the law applicable to the subject?
ThirdWere the utterances of the court in ruling upon the admission of the dying
statement prejudicial to the defendant, in view of the fact that the utterances themselves were
argumentative in their nature and tended to influence the jury on a question of fact to be
decided by them, namely, the belief of declarant at the time he made the declaration that he
was in extremis?
It might be unnecessary to dwell upon the last two questions, if the first one be decided in
the affirmative.
In the case of People v. Bonds, 1 Nev. 33, this court in dealing with the proposition where
the trial judge, in refusing to give certain instructions, said in the presence of the jury: This
idea of an accident, which has been urged by the defense, amounts to nothing, and is not
tenable. There is no evidence to show it was an accident; on the contrary it shows there was
a scuffle, and that the defendant persisted in holding on to the pistol."
37 Nev. 412, 427 (1914) State v. Scott
on the contrary it shows there was a scuffle, and that the defendant persisted in holding on to
the pistol.
These remarks were addressed to counsel and not to the jury, but were in the presence and
hearing of the jury. Mr. Justice Beatty, in speaking for this court with reference to the error,
said: There is nothing in the point made by the respondent's counsel that this was not a
formal instruction, but merely a remark made to counsel. Such a remark made by the
presiding judge in the hearing of the jury would have precisely the same effect as if given as a
formal instruction.
As was said in the case of State v. Harkin, 7 Nev. 377: It is difficult to give to these
remarks any pertinency whatever, without regarding them as an oral instruction to the jury;
and, so considered, the fact that they were not reduced to writing would constitute of itself
ample ground for a reversal. (People v. Bonds, 1 Nev. 33; State v. Tickel, 13 Nev. 511; State
v. Warren, 18 Nev. 459, 5 Pac. 134; Allen v. U. S., 115 Fed. 10, 52 C. C. A. 597.)
In ruling upon the admissibility of the dying declaration, the expressions of the court,
made in the presence of the jury, were entirely uncalled for. The sole question before the
court on that occasion was as to whether or not the foundation had been laid for the
admissibility of the dying statement, as an evidentiary element in proving the case of the
prosecution. The weight of the dying declaration, after such had been admitted, was for the
jury solely. Moreover, it was for the jury to determine the fact as to whether or not the dying
declaration was made by the declarant while he believed himself to be in articulo mortis. (21
Cyc. pp. 986, 987; Hawkins v. U. S., 3 Okl. Cr. 651, 108 Pac. 561; People v. White, 251 Ill.
75, 95 N. E. 1036.)
[10] The court's remarks relative to the admissibility of the dying declaration was an
incomplete and erroneous statement of the law, and especially is this true with reference to
his assertion wherein he states: Consequently the law having seen the necessity of the
admission of dying declarations in a case of homicide has, as a matter of necessity,
dispensed with the cross-examination, and the law has laid down the rule that when a
declarant is under the fear of death, and in the presence of imminent death, and realizes
that his death is imminent, that such a situation as that creates in the mind of the
declarant, who realizes that he is about to go before his Maker, an obligation which is as
binding as an oath administered in a court of justice."
37 Nev. 412, 428 (1914) State v. Scott
dying declarations in a case of homicide has, as a matter of necessity, dispensed with the
cross-examination, and the law has laid down the rule that when a declarant is under the fear
of death, and in the presence of imminent death, and realizes that his death is imminent, that
such a situation as that creates in the mind of the declarant, who realizes that he is about to go
before his Maker, an obligation which is as binding as an oath administered in a court of
justice.
Mr. Wharton, in his work on Criminal Evidence (section 276), in speaking of this subject,
says:
In dealing with this kind of evidence, it should be observed that passions and prejudices,
which in life may pervert the perceptive faculties, do not always lose their power on the
deathbed; hence it cannot always be said that the consciousness of the near approach of death
is equivalent to an oath administered on the witness stand. A witness sworn in court knows
that he may be convicted of perjury if he testifies falsely. A dying man, if he believes in future
retribution, will speak, if his faculties are unimpaired, under a similar sanction; but dying men
do not always retain their faculties unimpaired, nor do all dying men believe in a future state
of retribution. Convicts on the scaffold have as little hope of reprieve as persons on the eve of
death; yet there is no kind of evidence as unreliable as the last speeches of convicts on the
scaffold.
Again, there is an absence of the cross-examination, the means by which, when a witness
is produced in court, mistaken perceptions are corrected and delusions dispelled. Again, the
witnesses who catch up these statements are generally friends of and sympathizers with the
dying man eager to encourage and to preserve any remarks he may utter, no matter how
incoherent or feverish, which may vindicate him, implicate the common object of hate; nor by
such witnesses is it likely that questions would be asked as to the grounds of the declarant's
belief.
The weight, therefore, to be attached to dying declarations depends upon these
conditions: {1) The trustworthiness of the reporters; {2) the capacity of the declarant at
the time to remember accurately the past; and {3) his disposition truly to tell what he
remembers."
37 Nev. 412, 429 (1914) State v. Scott
declarations depends upon these conditions: (1) The trustworthiness of the reporters; (2) the
capacity of the declarant at the time to remember accurately the past; and (3) his disposition
truly to tell what he remembers.
In the case of State v. Eddon, 8 Wash. 292, 36 Pac. 139, the Supreme Court of the State of
Washington quoted approvingly from the case of the State v. Vansant, 80 Mo. 67, saying:
It is to be remembered, however, in weighing such testimony, that the feelings of
animosity and ill-will, once aroused, are not always allayed, and that the passion of anger
attending the fatal occurrence itself is not always extinguished even by the consciousness of
impending death; and it is also to be remembered that the accused is deprived of all power of
cross-examinationa power quite as essential to the eliciting of all the truth as the obligation
of an oath can be. Besides, such declarations are afflicted with the common infirmity which
attaches to all oral statements or verbal admissions reduced to writing or repeated by another,
and are liable to be colored or deflected by the medium through which they are transmitted to
the jury.
The effect of the remarks of the trial court in this case, made in his ruling upon the
admissibility of the dying statement, was necessarily to emphasize that statement and to make
it appear to the jury that the statement itself, when submitted, was to have the same weight
and consideration as though it had been made in their presence under oath. A dying
declaration made by one who in truth believes himself to be in extremis does not, under the
great weight of authority, receive the same weight and credence, nor is it to be judged by the
same rule, as the testimony of living witnesses under oath and produced in court and
subjected to cross-examination. (Wharton, Criminal Evidence, 10th ed., vol. 1, p. 540; State
v. McCanon, 51 Mo. 160; State v. Valencia, 140 Pac. 1119.)
[11] The question whether the alleged dying declarations were made under such
circumstances as to render them admissible in evidence was in the first instance to be
determined by the court upon the preliminary proof or predicate for their admission.
37 Nev. 412, 430 (1914) State v. Scott
them admissible in evidence was in the first instance to be determined by the court upon the
preliminary proof or predicate for their admission. All that was required to let the statements
go to the jury was the making of a prima facie case that the utterances were made by the
declarant when he was in extremis, and when he was fully conscious of that condition.
However this may be, the ultimate fact and the weight, credence, and significance to be given
to the statement when admitted is for the jury, and it is error to remove this question from
their consideration. (People v. Thomson, 145 Cal. 717, 79 Pac. 435; State v. Hendricks, 172
Mo. 654, 73 S. W. 194; 21 Cyc. 987.)
It was not within the province of the court to determine this fact for the jury, and it was
especially erroneous for the court to argue this fact before the jury, or in their presence or
hearing. Notwithstanding this, the court in ruling upon the objection said: Now in this case,
considering all of the circumstances which have been placed in evidence before the court,
from which the court must draw his conclusions as to whether the declarant was under and in
the presence of immediate dissolution, and in the presence of impending death, and had no
hope of recovery, I have come to the conclusion that the foundation laid has been sufficient.
Following this the court repeated in the presence of the jury all of the conditions submitted
in evidence, and the circumstances surrounding the taking of the statement and the utterances
of the declarant. Had the court stood before the jury box at the conclusion of the trial and
argued in behalf of the prosecution, he could not have presented a more forceful argument on
this material phase of the case than that delivered to counsel in the presence of the jury,
wherein he states his conclusions.
That juries listen with eagerness to the words and utterances of the trial judge, to glean
from him his conclusions on the matter pending, is a fact not to be disputed, and it was that
fact, as much as any other thing, that caused the framers of our constitution to set forth that:
"Judges shall not charge juries in respect to matters of fact, but may state the testimony
and declare the law."
37 Nev. 412, 431 (1914) State v. Scott
that: Judges shall not charge juries in respect to matters of fact, but may state the testimony
and declare the law. (Article 6, sec. 12.)
It is evident, said Mr. Justice Garber, in speaking for this court, that the opinion of the
court can be as effectively conveyed to the jury by expressing it in their hearing while ruling
upon an objection to evidence, as by embodying it in what purports to be a declaration of the
law of their instruction. Accordinglyand we think correctlyit has been held that the judge
has no more right to volunteer, before the jury, his opinion upon a material fact in
controversy, while deciding a question of law on the trial, than he has to charge the jury in
respect of such fact. (McMinn v. Whelan, 27 Cal. 319; State v. Dick, 60 N. C. 47.) The right
to a decision on the facts, by a jury uninfluenced and unbiased by the opinion of the judge,
has been deemed worthy of a constitutional guaranty. It cannot be lawfully denied, by the
simple evasion of looking at the counsel instead of at the jury, or of foisting the opinion into a
ruling upon testimony. (State v. Harkin, 7 Nev. 383.)
The record discloses that the dying declaration was admitted in evidence by the trial judge
after he had made the statement herein set forth. The record further discloses that no other
instruction was given to the jury in any wise bearing upon the dying declaration as admitted.
From the statement of the trial judge made in their presence the jury must have concluded,
and in fact could have reached no other conclusion, than that it was for the judge and not for
them to determine as to whether or not the deceased, at the time of making the declaration,
actually believed himself to be in extremis. No other conclusion could have been arrived at by
the jury than that the statement itself as passed upon by the judge and admitted to the jury was
a self-evident and conclusive fact that all of the statements which it contained were true. This
was an erroneous impression which must necessarily have followed from the extensive
remarks of the trial court.
37 Nev. 412, 432 (1914) State v. Scott
Without passing upon the question as to whether or not such an impression could have
been cured at all, it is sufficient to say that no attempt was made to cure it, or to give the jury
a correct instruction bearing upon the subject.
Other alleged errors have been referred to in the arguments and briefs, but we think it
unnecessary to refer to them. In some of the assignments of error it is claimed upon the part
of the state that proper exceptions were not taken. Were it not for the fact that the jury found
the defendant guilty of first degree murder upon evidence which, considering it in the most
favorable light for the prosecution, can hardly be said to warrant a conviction for that degree
of homicide, we might be included to regard technicalities with a greater degree of strictness,
where defendant's substantial rights are involved. We would, we think, be justified in basing a
reversal of this case upon the sole ground that the evidence does not justify the verdict of first
degree murder; but, when the evidence is considered in connection with the errors committed
at the trial, whether properly excepted to or not, the reason is all the stronger for basing a
reversal upon the whole record of the case.
[12] We think it here proper to state that it is commendable for district attorneys to be
vigorous in the prosecution of crime, but they should not forget that their duty is not solely to
convict. The defendant has rights which the prosecuting attorney is as much bound to respect,
and even protect, as he is bound fairly, vigorously, and justly to present the cause of the state
at the trial. The right to life and liberty is one of the dearest and most precious things which a
citizen possesses. While a citizen may, by a criminal act by him committed, forfeit his right to
the one or the other, the state, whose representative the district attorney is, does not demand a
conviction for a crime, or a particular degree of crime, as the case may be, where the facts do
not warrant such a conviction. The office of district attorney is one of great power and
responsibility. It may often happen that he is called upon to protect the rights of an accused
person from the possibility of a conviction based upon public sentiment rather than the
actual facts of the case.
37 Nev. 412, 433 (1914) State v. Scott
that he is called upon to protect the rights of an accused person from the possibility of a
conviction based upon public sentiment rather than the actual facts of the case. When a
prosecuting officer seeks to take advantage of public sentiment to gain an unjust conviction or
seeks to take an unfair advantage in the introduction of evidence or in any other respect, he is
failing in his duty as the state's representative. The duty of district attorneys to be fair to
defendants on trial is scarcely less obligatory than the duty which rests upon the courts, whose
officers they are. Both are bound, while holding a defendant accountable for his acts, to
protect him in his substantial rights.
These observations are general and are not intended to be in criticism of the prosecuting
attorney in this case, but as a gentle reminder to prosecuting attorneys generally of the nature
and character of the office which for the time being they happen to fill. This court in a
number of cases has been compelled to reverse convictions due to acts of overzealous
prosecuting attorneys, and the reports of other courts show numerous reversals for the same
reason. Hence an occasional reminder to prosecuting attorneys of what is the real character
and function of their office may not be inappropriate.
The judgment and order refusing a new trial are reversed, and the cause remanded for a
new trial.
It is so ordered.
Talbot, C. J., dissenting:
I am unable to agree with the conclusions of my learned associates regarding either the
facts or the law pertaining to this case.
At the outset, I must dissent from any assertion that the deceased was the assailant in all
the altercations, and particularly from the statements in the prevailing opinion that: The
record in this case discloses evidence produced by the state, depicting the circumstances of
three distinct altercations occurring in succession between the deceased and the defendant,
in each of which the state's evidence undeniedly shows the deceased to have been the
aggressor." "The witness Miller was the principal witness for the state, and her testimony,
taken in connection with the dying declaration introduced in evidence, discloses three
events happening in succession, in each one of which the deceased appears to have been
the aggressor."
37 Nev. 412, 434 (1914) State v. Scott
and the defendant, in each of which the state's evidence undeniedly shows the deceased to
have been the aggressor. The witness Miller was the principal witness for the state, and her
testimony, taken in connection with the dying declaration introduced in evidence, discloses
three events happening in succession, in each one of which the deceased appears to have been
the aggressor. The testimony of the state's witnesses, of whom the witness Miller was the
principal witness, discloses that the deceased, Swago, was the assailant in the first instance.
Unless I am without a proper understanding of the words used, there is no evidence to
support these assertions, and if the evidence was conflicting, it was for the jury and is not for
this court to determine. The Standard Dictionary defines aggressor:
Webster defines aggress:
One who commits an aggression, especially that one of two contestants who begins the
quarrel; assailant, one who assails or attacks; assail, to attack or assault violently or with
hospitality, either with physical force or by argument, censure, abuse, or the like.
Webster defines assailant:
To commit the first act of hostility or offense; to begin a quarrel or controversy; to make
an attack.
One that makes an assault; one that assails or attacks; (4) assail, to attack morally with a
view to produce changes in the feelings, character, conduct; * * * to attack by words, hostile
influence, * * * as to assail one with appeals, arguments, abuse, ridicule. They assailed him
with keen invective; they assailed him with still keener irony.' (Macauley.)
The evidence shows clearly that the defendant was to blame in starting the trouble by using
his tool, and in ending it by shooting the deceased with a pistol. First of all, he committed a
highly indecent act upon the floor, and the deceased being a partner in the establishment, who
could properly feel ashamed and injured in business by such act of the deceased, simply and
not improperly, asked him why he did it. The defendant being stimulated by liquor, abusive
and domineering, continuing in the wrong, assailed the deceased with most indecent
language and threatened to put him out of the place.
37 Nev. 412, 435 (1914) State v. Scott
the wrong, assailed the deceased with most indecent language and threatened to put him out
of the place. Then the deceased, acting upon an impulse created by the abuse of defendant,
slapped the defendent, when, after further assault and altercation, and after they had been
separated and held apart, the deceased left the room, and the defendant, notwithstanding
effort to prevent him, went behind the bar, obtained a pistol, and followed the deceased after
he had gone out of the building.
One man may assail another with abuse and threats, as the defendant did here, or spit in
another's face, or commit acts by which he would be quite as much to blame as if he had been
the first to give a blow. I am not aware that it is, or heretofore has been, the law that one who
by using vile epithets and threats angers another so that he strikes with his fist is justified in
killing the man that he wrongly caused to strike him; or that if the man who first used his fist,
whether rightfully or wrongfully, has gone away to escape further trouble, the other can go
and get a gun and pursue him and kill him when he tries to wrest the gun to protect himself,
without being guilty of murder.
Under the dying declaration and the testimony of eye-witnesses, the jury were fully
justified in concluding that the defendant obtained the gun, pursued the deceased after he had
retreated, with malice and the intention of killing him, and that when the defendant was so
pursuing and about to assault the deceased he, in an effort to save his own life, properly
grappled with the defendant and endeavored to turn or wrest the revolver from him so as to
avoid being shot.
When a person accused of crime pleads not guilty and goes to trial, he has the right of trial
by jury guaranteed him by the constitution, and should be bound by the verdict of the jury
when the verdict is supported by evidence showing guilt, regardless of any conflicting
testimony. If there be a verdict of not guilty, it is conclusive against the state, however wrong
it may be, and the accused cannot be tried again. All reasonable safeguards should be
accorded to every person charged with crime; but when he has counsel, is confronted by the
witnesses, may produce evidence on his behalf, and the state must satisfy every one of
twelve good men that he is guilty beyond a reasonable doubt, the verdict should not be
lightly set aside.
37 Nev. 412, 436 (1914) State v. Scott
he has counsel, is confronted by the witnesses, may produce evidence on his behalf, and
the state must satisfy every one of twelve good men that he is guilty beyond a reasonable
doubt, the verdict should not be lightly set aside. Heretofore this court has invariably held that
it will not disturb the verdict of a jury if there is substantial evidence to support it. (State v.
Buralli, 27 Nev. 41, 71 Pac. 532; State v. Wong Fun, 22 Nev. 336, 40 Pac. 95; State v. Mills,
12 Nev. 403.)
The statute (Rev. Laws, sec. 6386) 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 of specified crimes,
shall be deemed murder of the first degree; and all other kinds of murder shall be deemed
murder of the second degree; and the jury before whom any person indicted for murder shall
be tried, shall, if they find such person guilty thereof, designate by their verdict whether it be
murder of the first or second degree.
The jurors were the judges of the questions of fact, including the one as to whether the
defendant was acting under impulse or with deliberate intent to kill when he insisted on
obtaining the pistol and pursued the deceased after he had left the building to avoid trouble,
and shot and killed the deceased after he grappled with the defendant in an effort to wrest the
pistol and save himself from being shot.
Regarding the admission of the dying declaration and the remarks of the court made in
relation thereto, I am unable to see that there is any prejudicial error. If there are any cases in
which the jury need be excluded at the discretion of the court, they are rare. Seldom, if ever,
can evidence as to whether deceased was aware of impending death at the time he made the
dying declaration be of such a nature as to prejudice the jury against the defendant, whether
the court consider such evidence sufficient and admit the declaration, or consider it
insufficient and refuse to allow the declaration of the deceased to be proven before the jury.
37 Nev. 412, 437 (1914) State v. Scott
proven before the jury. What possible difference could it have made in this case if the trial
court had followed such a rule as is now proposed by a majority of this court and had frittered
away its time by first excluding the jury and hearing the evidence showing that the deceased
was aware of impending death at the time he made the dying declaration, and the evidence
had again been introduced after the jury had been returned into court? If, as in the present
case, the jurors were given the evidence in relation to the dying declaration, how could it
have made any difference with their verdict if the evidence had been heard by the court in
their absence first? The testimony and the conditions show conclusively that the deceased
was aware of his impending death, and the circumstances are such that it cannot be assumed
that either the court or jury would have found otherwise.
The quarrel and shooting occurred late on the night of February 24, 1913. The bullet
entered his abdominal cavity, about four inches to the left of the navel, and ranged upward
and backward. The wound prostrated him upon his back upon the ground, and he was unable
to arise until assisted. He immediately said he was killed, and afterwards told the doctor that
he was done for and could not get well. His principal dying declaration was made the day
after the shooting, and he died the following day. In this statement he said, I am an awful
sick man and might die before night. His dying condition was so apparent to the attending
physician and others that it must be assumed, in connection with the statements he made, that
he was aware of his approaching death. It is claimed that the deceased's declaration, I am an
awful sick man and might die before night, indicated that he was not without hope of
recovery. In view of other statements made by him, and his fatal condition, which must have
been apparent to him as well as to others, it appears that he was without hope of recovery;
that the statement quoted indicated no hope of recovery, but rather doubt as to whether he
would live until night. The dying declarations were properly admitted.
37 Nev. 412, 438 (1914) State v. Scott
admitted. (State v. Williams, 28 Nev. 395, 82 Pac. 353; State v. Roberts, 28 Nev. 350, 82 Pac.
100; State v. Vaughan, 22 Nev. 285, 39 Pac. 733; State v. Murphy, 9 Nev. 394; State v.
Hennessey, 29 Nev. 320, 90 Pac. 221, 13 Ann. Cas. 1122). Nor was the admission of
evidence that the deceased was without hope of recovery at the time the declaration was
made, or the statements of the court regarding the admission of this evidence, whether made
in the presence or absence of the jury, prejudicial error.
If in the presence of the jury the court did hear evidence regarding the state of mind of the
deceased at the time he made the declaration, and found that evidence to be sufficient to lay
the foundation for the admission of the declaration, what possible bearing or prejudice could
such testimony have had upon the mind of the jury in determining whether the defendant was
guilty of murder? How could the defendant be harmed by the statements of the judge in ruling
upon a matter of law regarding his conclusions as to the condition of mind of the deceased
when he made the dying declaration? If the court found and stated that the deceased was or
was not aware of impending death, this would not have any tendency to prejudice or prove to
the jury that the defendant was guilty. The constitutional provision that judges shall not
charge juries in respect to matters of fact, but may state the testimony and declare the law
(Const. art. 6, sec. 12), should apply to the dying declarations. (State v. Buralli, 27 Nev. 41,
71 Pac. 532.) If he proceeded further and stated as facts matters which were not conceded,
this would not be prejudicial error unless there was something in his statement which might
lead the jury to believe that the accused was guilty. If the judge had stated the contents of the
dying declaration, including some matter which tended to show guilt of the defendant, and
excluded the declaration on the ground that there was no proper foundation for the admission,
it would have been error. There was nothing in the statements of the judge to indicate to the
jury that he believed or that they were to accept the statements in the dying declaration
as true.
37 Nev. 412, 439 (1914) State v. Scott
he believed or that they were to accept the statements in the dying declaration as true. He
reviewed the facts showing that the deceased was aware of impending death, and stated that
he concluded that they laid a sufficient foundation for the admission of the dying declaration.
He did not tell the jury that they were to be bound by or accept his statements or conclusions
in relation to the dying statement. On the contrary, they were told that they were the judges of
the facts. If the judge had heard the evidence in the absence of the jurors, and admitted
without comment the dying declaration on their return into court, the mere fact of such
admission would have indicated to them that the judge was satisfied that the declaration was
made under the sense of impending death.
Under the above section of our constitution and practice the judge is prevented from
charging the jury regarding matters of fact, but this applies only to material undisputed
questions of fact; and if the judge makes a statement regarding any question of fact which is
disputed, and such fact, even if declared by the judge, would not have any tendency to show
guilt or prejudice the defendant, such statement by the judge must be regarded as harmless. If
it be admitted that the statement of the judge that the sense of impending death was
equivalent to an oath was error, although some courts have so held, such statement might tend
to add weight to the dying declaration or tend to convince the jury that it was true, if the
evidence without the dying declaration did not show conclusively the facts indicating the
commission of the crime. But what harm could this statement of the judge do the defendant if
the material facts stated in the declaration were shown beyond dispute by other evidence upon
which the jury would have acted with the same result if the declaration had not been
admitted, and when it is evident that under the circumstances no court and no jury could have
found otherwise than that the deceased was aware that he was about to die at the time he
made the declaration? If the district judge had stated his conclusion regarding some fact
which was in dispute, and which tended to show the guilt of the defendant or was
material to a determination of the case, and regarding which the jury might have found a
different verdict if the statement had not been made by the judge, it would have been
serious error.
37 Nev. 412, 440 (1914) State v. Scott
his conclusion regarding some fact which was in dispute, and which tended to show the guilt
of the defendant or was material to a determination of the case, and regarding which the jury
might have found a different verdict if the statement had not been made by the judge, it would
have been serious error.
Even the case of Hawkins v. U. S., 3 Okl. Cr. 656, 108 Pac. 563, which of the two isolated
ones cited seems to be mainly relied upon by my learned associates, a decision by an early
Oklahoma criminal court, is not an authority for reversing this case on the ground that the
court heard evidence regarding the state of mind of the deceased at the time he made the
declaration. In that case the court said: As a matter of practice it is much better to require the
state to make the full preliminary proof necessary to establish the competency and
admissibility of the dying declaration in the absence of the jury and before the declaration is
given in their hearing; but where that is not done, and a consideration of all the evidence in
the case shows the dying declaration to be competent and admissible, the error, if any, will be
treated as harmless.
This means that the court there, contrary to the views of many other courts of last resort,
believed it to be the better practice upon the trial to first hear such evidence in the absence of
the jury; but if the court did not exclude the jury, and the evidence shows the declaration to be
admissible, as it was in this case, the error, if any, will be treated as harmless.
In Rex v. John, 1 East P. C. 357, it was held that where a dying declaration is offered in
evidence it ought not to be left to the jury to say whether the deceased thought she was dying
or not, for that must be decided by the judge before he receives the evidence.
In Roten v. State, 31 Fla. 514, 12 South. 910, it was held that the question as to whether
dying declarations were made under the sense of impending death was one of law to be
decided by the court, and that the accused had the right to have the decision of the court
directly upon the point, and that it was error for the court to avoid the decision and shift
the responsibility upon the jury.
37 Nev. 412, 441 (1914) State v. Scott
point, and that it was error for the court to avoid the decision and shift the responsibility upon
the jury.
In State v. Burns, 33 Mo. 483, the defendant requested an instruction that if the jury
believed that the dying declarations of the deceased were not made in extremis, and not at a
time or under circumstances when the deceased was impressed with the conviction of death
resulting from the illness with which he was then confined, then the jury should discard such
declarations, although they believed the evidence in respect thereto to be true. It was held that
the instruction was very properly refused, for it left it to the jury to pass upon the
admissibility of the declarations, a question solely for the consideration of the court, and not
for the jury.
In State v. Simon, 50 Mo. 370, it was held that the truth of the facts put in evidence to
show that the declarations were made in view of speedy death is a matter exclusively for the
court to determine.
In People v. Kraft, 148 N. Y. 631, 43 N. E. 80, affirming 91 Hun, 474, 36 N. Y. Supp.
1034, it was held that whether the circumstances under which an ante-mortem statement was
made constituted sufficient foundation for its reception is a question which the trial court,
upon the facts addressed to it, must draw and decide, and an issue with which the jury had
nothing to do.
In Justice v. State, 99 Ala. 180, 13 South. 658, it was held that the question as to whether
the declarant was convinced that he was in extremis was one regarding which the jury could
not consider the credibility of the primary facts, and was one which must be determined by,
and was within the exclusive province of, the court.
Mr. Bishop, the most accurate of all American textwriters on criminal law, over the
citation of many authorities, states: The court, not the jury, determines the admissibility of
the dying declaration, the same as of other evidence, itself finding the necessary facts upon
testimony laid before it. (Bishop's New Crim. Proc. 2d ed. sec. 1212.)
37 Nev. 412, 442 (1914) State v. Scott
In the note under the heading, Questions for Court or Jury, 56 L. R. A., pages 434 to
441, inclusive, many cases are reviewed. In the first paragraph of this note, and near the end,
it is said:
It is generally conceded that the preliminary question as to whether the party offering in
evidence the statements of deceased in a trial for homicide has laid a proper foundation for
their admission is, primarily, for the judge or court presiding at the trial. And in England and
nearly all the states it is held that he decision of the court or judge on this subject is final and
conclusive; and that with it the jury have nothing to do. There are a few stray decisions in
some of the states to the general effect that after the court has admitted the declarations in
evidence the jury have a right to pass upon the question as to whether the declarant was under
a sense of imminent, impending dissolution and without hope of recovery; but in most
instances they will be found to be weak dicta, or to have been overruled. * * *
The following are cases to the effect that the general rule is as herein stated, viz, that the
question is absolutely one for the court to decide, and which the jury have no right to pass
upon: Moore v. State, 12 Ala. 764, 46 Am. Dec. 276: Faire v. State, 58 Ala. 74; Richard v.
State, 42 Fla. 528, 29 South. 413; State v. Baldwin, 79 Iowa, 714, 45 N. W. 297; State v.
Kuhn, 117 Iowas, 216, 90 N. W. 733; State v. Trivas, 32 La. Ann. 1086, 36 Am. Rep. 293;
State v. Molisse, 36 La. Ann. 920; State v. Cantieny, 34 Minn. 1, 24 N. W. 458; State v.
Johnson, 76 Mo. 121; State v. Johnson, 118 Mo. 491, 24 S. W. 229, 40 Am. St. Rep. 405;
State v. Reed, 137 Mo. 125, 38 S. W. 574; State v. Sexton, 147 Mo. 89, 48 S. W. 452; Basye
v. State, 45 Neb. 261, 63 N. W. 811; Maine v. People, 9 Hun (N. Y.) 113; People v.
Anderson, 2 Wheeler Cr. Cas. (N. Y.) 390; State v. Shaffer, 23 Or. 555, 32 Pac. 545; Kehoe v.
Com., 85 Pa. 127; Com. v. Sullivan, 13 Phila. (Pa.) 410; State v. Quick, 15 Rich. (S. C.) 342.
In addition to the instructions considered in the opinion, objections were made to a number
of others, which were copied from the statute.
37 Nev. 412, 443 (1914) State v. Scott
copied from the statute. Illustrative of these is No. 23, which is the same as section 6402 of
the Revised Laws, and which is as follows:
If a person kill another in self-defense, it must appear that the danger was so urgent and
pressing, that in order to save his own life, or to prevent his receiving great bodily harm, the
killing of the other was absolutely necessary; and it must appear, also, that the person killed
was the assailant, or that the slayer had really, and in good faith, endeavored to decline any
further struggle before the mortal blow was given.
It was urge that this instruction nullifies the doctrine of reasonable belief of appearances to
the comprehension of the defendant at the time of the killing, and bases the right of
self-defense entirely upon absolute necessity, ignoring what might have appeared to the
defendant as a reasonable person, and that it is an unqualified declaration by the court that the
right of self-defense to the extent of taking life exists only when the killing is absolutely
necessary. At the request of the defendant the court gave the following instruction (No. 28):
I instruct you that, in order for the defendant to be justified and excused on the ground of
self-defense, it is not essential that there should be any actual or real danger of his receiving
great bodily harm. If there be an appearance of danger caused by the act or demonstrations of
such person, and if such acts or demonstrations, or such words, coupled with acts or
demonstrations, produce in the mind of the defendant, as a reasonable man, a reasonable
expectation of some great bodily injury to himself, the defendant will be justified and should
be acquitted if he in good faith acts on such appearance of danger and under such reasonable
expectation or fear, even though it afterward turns out that there was, actually and in reality,
no danger.
Taking the two instructions together, the jury was sufficiently directed as to the matter in
regard to which this exception is taken. Considering the words in No. 23 that it must appear
that the danger is so urgent and pressing," that instruction is not in conflict with No.
37 Nev. 412, 444 (1914) State v. Scott
pressing, that instruction is not in conflict with No. 28, or the part thereof relating to the
appearance of danger; nor should No. 23 and the other instructions, which are copied from
the statute, be held erroneous, whether considered singly or in connection with other
instructions.
The second paragraph of instruction No. 31, stating that Self-defense is an affirmative
defense, and before you can acquit the defendant on that ground it must appear from the
evidence in the case sufficient to raise in your minds a reasonable doubt that the killing of the
deceased at the time and place alleged in the indictment, if he was so killed, was not
necessary in self-defenseif susceptible of the construction placed upon it in the opinion,
would simply indicate that the insertion of the word not in the last line was a clerical
mistake, and that the jurors, who must be presumed to have at least ordinary intelligence,
would not have been misled into the belief that it was not necessary to show that the killing
was in self-defense in order for them to acquit the defendant, when there can be no doubt that
every juror must have known the contrary. However, in the attempt in the opinion to construe
the meaning of this instruction, the words a reasonable doubt that, which are modified by
the word not, are inappropriately omitted.
Instructions to favorable to the defendant should not be grounds for reversal; and, under
the usual rules of practice, clerical errors are to be disregarded, and words which do not
prejudice the defendant are not ground for reversal.
The statement in the opinion that the third paragraph of instruction No. 31 is
objectionable, inasmuch as it instructs that unless the killing appeared to the jury to be
absolutely necessary they must find the defendant guilty, is identical with the statute, section
6402, which is the same as instruction No. 23, above quoted, which the last paragraph of
instruction No. 31 correctly states.
In State v. Ferguson, 9 Nev. 106, upon which considerable reliance seems to be placed,
the instructions which were criticized were different from the ones here, and contained matter
which the legislature had not declared to be the law.
37 Nev. 412, 445 (1914) State v. Scott
to be the law. The opinion was written by a revered member of this court, who afterwards
became a great jurist, at a time when he had little experience as a lawyer or judge.
It is a well-established rule of practice that, in determining whether an instruction is
erroneous or calculated to mislead the jury, the whole charge must be taken together and
considered as an entirety, and, if anything essential omitted from an instruction be found in
another portion of the charge, the omission will not be fatal. (State v. Pritchard, 15 Nev. 74;
Allison v. Hagan, 12 Nev. 38; State v. Raymond, 11 Nev. 98; State v. Donovan, 10 Nev. 36;
Solen v. V. & T. R. R. Co., 13 Nev. 106.)
The court should not be expected to give all the law in one instruction. If instruction No. 31
did not contain all that the defendant desired, his counsel was at liberty to request the giving
of a further instruction, which was done. If it had been incumbent on the court to give
instructions on behalf of the defendant, instruction No. 28 contains the very matter which it is
claimed is the correct principle of law omitted from instruction No. 31. If considered
together, as it must be presumed they were by the jury, they correctly state the law, and no
harm resulted to the defendant.
If trial courts may not give to juries instructions in the exact language of the statute, or
parts of the statute, defining murder, or the crime for which the accused is on trial, leaving
him to offer other instructions which are the law as he may desire, the procedure of
prosecuting officers and district courts may be rendered uncertain, needless new trials or
setting aside of verdicts, trouble for witnesses and jurors, expense to taxpayers, and
impairment of the administration of justice and the safety of society may result. The court
should follow its properly authorized power to construe the laws, and not, by legislating
words out of the statute which were clearly placed there for a purpose, usurp the prerogatives
of the lawmaking power, which belong to another branch of the government.
It is strongly urged that the court erred in not giving an instruction defining
manslaughter.
37 Nev. 412, 446 (1914) State v. Scott
an instruction defining manslaughter. On behalf of the state it is said that the court did define
manslaughter in different instructions. As often indicated by this court, it is not incumbent
upon the trial judge to prepare and give instructions on behalf of the defendant, who may
draw and request the giving of such instructions as he may desire. (State v. St. Clair, 16 Nev.
207; State v. Davis, 14 Nev. 407.) To sustain the contention that it was prejudicial error for
the trial court to fail to fully instruct regarding manslaughter, or on other matters regarding
which on instruction was requested, would not only reverse numerous decisions of this court,
but would make a radical change in the practice and promulgate a new rule which would
require the exercise of unusual care and impose upon the trial judge the labor and detail work
which should be borne by counsel in numerous cases, and lead to unnecessary reversals.
Among the sixty-three specifications of error, a number of others relate to matters which
may arise upon a new trial, and are of sufficient importance to be given consideration.
Objection was made to the allowance by the court of an answer by one of the witnesses who
was asked if he had heard the defendant make any threats against Ben Swago, and who had
replied that the defendant had said a short time prior to the homicide, To hell with the
Slavonians! The jury had the right to consider whether this statement was intended to apply
to the deceased. If, as counsel contends, it had no reference to him, it was not of such a
prejudicial character as to be reversible error. It is admissible to prove threats, motive, hatred,
or ill-will, expressed by the accused against the deceased in homicide cases. (State v. Hymer,
15 Nev. 49; State v. Bonds, 2 Nev. 265.)
Upon cross-examination the district attorney asked one of the defendant's witnesses regarding
the conduct and affecting the reputation of his sister, objections to which were sustained by
the court. Although it is generally better for the district attorney not to ask questions regarding
matters which are not properly admissible in evidence, I am unable to see that the mere
asking of these questions constitutes error warranting the reversal of the case.
37 Nev. 412, 447 (1914) State v. Scott
evidence, I am unable to see that the mere asking of these questions constitutes error
warranting the reversal of the case. Some courts have required witnesses upon
cross-examination to answer to the most searching questions regarding their personal
character, tending to humiliate and degrade, which did not pertain directly to their truth and
veracity. In some jurisdictions the extent of these questions is left largely to the discretion of
the court. Nevada is among the states in which the witness is not required to answer
interrogatories not relating to convictions of felony which merely tend to degrade and do not
bear upon his truth and veracity. Professor Wigmore, in his work on Evidence, has treated
extensively the right of cross-examination in this regard. (Volume 2, secs. 987, 988.)
Our statutes provides: A witness shall answer questions legal and pertinent to the matter
in issue, though his answer may establish a claim against himself; but he need not give an
answer which will have a tendency to subject him to punishment for a felony, nor need give
an answer which will have a direct tendency to degrade his character, unless it be to the very
fact in issue would be presumed. But a witness shall answer as to the fact of his previous
conviction of felony. (Rev. Laws, sec. 5437.)
This section of the civil practice act is made applicable to criminal cases. (Rev. Laws, secs.
7451, 7454.)
In Maxwell v. Rives, 11 Nev. 214, it was held that the witness might put himself upon his
privilege not to criminate or degrade himself, but as he expressly disclaimed this excuse he
was bound to answer the questions.
In State v. Huff, 11 Nev. 28, it is said: The witness may be privileged from answering; but
the question may be put, and , if the witness waive his privilege, answered, if the answer
relates to the conduct of the witness and legitimately affects his credit for veracity. We think
this rule was violated in this case in allowing an examination in regard to matters not
legitimately affecting the veracity of the witness. No legitimate inference of the
untruthfulness of a witness can be drawn from the fact that he has been convicted of
frequent assaults and batteries.
37 Nev. 412, 448 (1914) State v. Scott
untruthfulness of a witness can be drawn from the fact that he has been convicted of frequent
assaults and batteries. It could be inferred that he was a violent-tempered and perhaps a
dangerous man, but not that he was a liar. See 1 Greenl. Ev. sec. 458, to the effect that
questions are not permissible, the answers to which, though they may disgrace the witness in
other respects, yet will not affect the credit due to his testimony.'
In State v. Larkin, 11 Nev. 330, it is said in the opinion: A witness may be unchaste and
yet be truthful. A witness may be chaste and yet be untruthful. The law affords ample
remedies for testing the credibility of witnesses, without introducing testimony of specific
acts of immorality, and in particular instances allow greater latitude than in others, owing to
the special facts and circumstances that surround each individual case. There are perhaps
exceptional cases where it might be proper to show the utter depravity of the moral character
of a witness in order to establish the fact that such a witness is not entitled to any credit. But
we are not dealing with the exceptions. The general rule, as recognized by a majority of the
decided cases, is that evidence of bad character for chastity, where such character is
collaterally, not directly, in issue, is not admissible for the purpose of impeaching the
credibility of a witness. (People v. Yslas, 27 Cal. 630; Gilchrist v. McKee, 4 Watts, 380, 28
Am. Dec. 721; Jackson v. Lewis, 13 Johns. 505; Bakeman v. Rose, 14 Wend. 110; Ford v.
Jones, 62 Barb. 484; Spears v. Forrest, 15 Vt. 436; Kilburn v. Mullen, 22 Iowa, 502; Rudsdill
v. Slingerland, 18 Minn. 381.) * * *
A man may be so incontinent as to destroy his reputation for chastity, and yet retain a
scrupulous regard for truth. Want of chastity, in many instances, might include a want of
veracity; but it must be admitted that this is not always so. It is only with the witness's
character for truth and veracity with which the jury have to deal. A witness, although
unchaste, is entitled to credit if the jury are convinced that his, or her, testimony is true. A
witness, although chaste, is not entitled to credit if the jury are convinced that his, or her,
testimony is false. 'The only object of inquiring into the character of a witness,' as was
said in Rudsdill v.
37 Nev. 412, 449 (1914) State v. Scott
entitled to credit if the jury are convinced that his, or her, testimony is false. The only object
of inquiring into the character of a witness,' as was said in Rudsdill v. Slingerland, is to
ascertain whether his statements in themselves are entitled to credit; if he is a truthful person,
they are; otherwise, they are not. A witness therefore, in coming into court, would, perhaps,
properly be considered as asserting his character for truthfulness to be good, and be charged
with notice to defend it; but we are unable to see why a witness should be held responsible to
answer for, or be required to meet, an attack upon his character in any other respect. A man
may indulge in vices which destroy his general character, yet his truthfulness, and his
reputation for truthfulness, may be unimpeachable. An inquiry in such a case as to his moral
character would mislead, instead of assist, in arriving at the object of investigation, namely,
his credibility; it would, in any event, be an unnecessary attack and exposure of him to
contempt and disgrace. Further, by such general inquiry as to character, the administration of
justice would be hindered and delayed by collateral issues, and be more easily made the
channel of venting private hatred and malice. For these, among other reasons, we think the
better general rule is that, in impeaching the character of a witness in this mode, the inquiry in
chief must be restricted to his credibility; that is, his general reputation for truth and veracity.
This cross-examination of the district attorney of the witness relating to the conduct of his
sister, who was a witness for the state, bears no similarity to the statement of the district
attorney in State v. Rodriguez, 31 Nev. 342, 102 Pac. 863, relied upon by appellant, that
defendant was a maque, when there was no evidence in the case to support the assertion.
The defendant asked for a new trial by reason of newly discovered evidence, which is not a
ground for a new trial under the statute. The affidavits presented would not be considered as
requiring a new trial under the practice relating to civil cases. If the criminal practice act
allowed new trials on the ground of newly discovered evidence, they would not be
available on the part of the state after a verdict of acquittal, under the constitutional
provision against an accused person being twice put in jeopardy.
37 Nev. 412, 450 (1914) State v. Scott
new trials on the ground of newly discovered evidence, they would not be available on the
part of the state after a verdict of acquittal, under the constitutional provision against an
accused person being twice put in jeopardy. If new trials were allowed on that ground, the
ultimate punishment of criminals might in many cases become uncertain. Persons under
conviction and entitled to relief by reason of newly discovered evidence may apply for
pardon.
The practice, so long followed in this court, that errors not specified and excepted to will
not be considered on appeal, should not be overturned, because not fair to the trial court, to
opposing counsel, or to litigants. (Wigmore on Evidence, sec. 20; McGurn v. McInnis, 24
Nev. 370, 55 Pac. 304, 56 Pac. 94; Finnigan v. Ulmer, 31 Nev. 523, 104 Pac. 17; State v.
Williams, 31 Nev. 360, 102 Pac. 974; State v. Jones, 7 Nev. 408; State v. Mangara, 33 Nev.
511, 112 Pac. 693; State v. Clark, 36 Nev. 472, 135 Pac. 1083; Lightle v. Berning, 15 Nev.
389; Sharon v. Minnock, 6 Nev. 377; State v. Murphy, 9 Nev. 394; Dick v. Bird, 14 Nev.
161.)
Recent decisions in this court holding that errors that do not prejudice should be disregarded
are: State v. Clark, 36 Nev. 472, 135 Pac. 1083; State v. Mircovich, 35 Nev. 489, 130 Pac.
766.
In the Mircovich case we said:
The Revised Laws provide at section 7302 that, After hearing the appeal, the court shall
give judgment without regard to technical error or defect which does not affect the substantial
rights of the parties,' and at section 7469 that no judgment shall be set aside, or new trial
granted, in any case on the ground of misdirection of the jury or the improper admission or
rejection of evidence, or for error as to any matter of pleading or procedure, unless in the
opinion of the court to which application is made, after an examination of the entire case, it
shall appear that the error complained of has resulted in a miscarriage of justice, or has
actually prejudiced the defendant, in respect to a substantial right. These provisions have
been slightly modified or broadened by the new code, but are substantially similar to the
one passed at the first session of the territorial legislature and in force for more than fifty
years; and they are nearly the same as the one more recently recommended by the
American Bar Association.
37 Nev. 412, 451 (1914) State v. Scott
but are substantially similar to the one passed at the first session of the territorial legislature
and in force for more than fifty years; and they are nearly the same as the one more recently
recommended by the American Bar Association. (Stats. 1861, p. 499, sec. 589; Comp. Laws,
sec. 4554.)
This court has often applied this statute in murder and other cases, and refused to set
aside convictions or remand actions for new trials for errors which did not affect the
substantial rights of the accused. (State v. Williams, 31 Nev. 360, 102 Pac. 974; State v.
Jackman, 31 Nev. 511, 104 Pac. 13; State v. Skinner, 32 Nev. 70, 104 Pac. 223; State v.
Simpson, 32 Nev. 138, 104 Pac. 244, Ann. Cas. 1912c, 115; State v. Petty, 32 Nev. 384, 108
Pac. 934, Ann. Cas. 1912d, 223; State v. Martel, 32 Nev. 395, 108 Pac. 1097; State v.
Depoister, 21 Nev. 107, 25 Pac. 1000; State v. Vaughan, 22 Nev. 285, 39 Pac. 733; State v.
Hartley, 22 Nev. 342, 40 Pac. 372, 28 L. R. A. 33; S. N. M. Co. v. Holmes M. Co., 27 Nev.
107, 73 Pac. 759, 103 Am. St. Rep. 759).
In State v. Buster, 23 Nev. 348, 47 Pac. 194, it was held that the failure of the trial court
to make the proper order striking out the testimony of a witness concerning a confession was
harmless error, because the same confession was conclusively established by several other
witnesses whose testimony was not contradicted. As the evidence was clear and undisputed
that Mircovich killed Gregovich by stabbing him with a knife, in the presence of numerous
people, at the railroad station, the jury could not have found otherwise, regardless of whether
testimony relating to a confession or statements concerning the knife were properly or
improperly admitted.
No prejudicial error, among the sixty-three claimed, is shown, and no good reason appears
for this court to go contrary to its former decisions and those of other courts generally, and to
the laws passed by the legislature, to relieve the defendant, who was convicted of murder
after a fair trial and an energetic defense, when as a result he must either be turned loose on
the community or great expense be incurred by the county, and much time and trouble be
imposed upon the district court, prosecuting officers, witnesses, and jurors by a new trial.
37 Nev. 412, 452 (1914) State v. Scott
expense be incurred by the county, and much time and trouble be imposed upon the district
court, prosecuting officers, witnesses, and jurors by a new trial. Witnesses may have died or
left the state, and for other reasons conviction may now be difficult, although warranted and
obtained upon the original trial. If the punishment inflicted be deemed too severe, relief
should be sought from the pardoning power, the one created to consider and act in such cases.
Per Curiam:
Rehearing denied.
____________
37 Nev. 452, 452 (1914) State v. Keith
[No. 2133]
STATE OF NEVADA, Ex Rel. GEO. B. THATCHER,As Attorney-General, Petitioner, v.
GEORGE W. KEITH, Respondent.
[142 Pac. 532]
1. ElectionsRegistrationDesignation of Political PartyRight to Change.
Under the election laws of 1913 (Stats. 1913, c. 284, subc. 3, sec. 18), relating to primary elections,
and subchapter 2, secs. 4, 5, relating to registration, an elector who has registered, so as to be entitled to
vote at a primary election, by designating his political party and having same entered on the registry,
cannot subsequently require the registry agent to change such designation.
2. ElectionsRegistrationDesignation of Political Party.
Under the election laws of 1913 (Stats. 1913, c. 284, subc. 3, sec. 18), relating to primary elections,
and subchapter 2, secs. 4, 5, relating to registration, where an elector has registered, but has failed to
indicate his politics or party designation, he may, prior to the time fixed for closing registration, apply to
the registry agent and have an entry made on the registry of his politics or party designation so as to
entitle him to vote at a primary election.
3. ElectionsRegistrationDesignation of PoliticsHeretofore.
As used in the election laws of 1913 (Stats. 1913, c. 284, subc. 3, sec. 18), providing that an elector
shall not be entitled to vote at a primary election unless he has heretofore designated to the registry
agent his politics, the word heretofore relates to the time in which an elector may lawfully be
registered for the primary election.
37 Nev. 452, 453 (1914) State v. Keith
Original Proceeding in prohibition by the State, on the relation of Geo. B. Thatcher,
against George W. Keith. Writ granted as to one of the two questions presented and denied
as to the other.
Geo. B. Thatcher, Attorney-General, for Relator.
W. W. Griffin, for Respondent.
[1-2] This is an original proceeding in prohibition, and the petition presents two questions
under the election laws: First, can an elector who has registered so as to entitle him to vote at
the primary election by designating and having entered upon the registry the politics or
political party of such elector, subsequently apply to the registry agent and have changed the
designation of his political party? Second, can an elector who has registered and who has
failed or refused to indicate his politics or party designation, prior to the time fixed for close
of registration for the primary election, apply to the registry agent and have entered on the
register his politics or party designation so as to entitle him to vote at the primary election?
Upon both questions above presented we are without precedent. It is the contention of the
attorney-general that they should be answered in the negative. Counsel for respondent agrees
with the attorney-general as to the first question, but contends that the second question should
be answered in the affirmative.
Section 18 of Chapter 3Primary Elections of the election laws of 1913 contains the
provision: No elector shall be entitled to vote at primary elections unless he has heretofore
designated to the registry agents his politics or political party to which he belongs and has
caused to be entered upon the register by such * * * agents his politics or the political party to
which he belongs. * * * (Stats. 1913, p. 521.)
Section 4 of Chapter 2Registration of the same act provides that the county
commissioners "shall furnish to each registry agent a book which shall be known as the
'Official Register,' which shall be ruled in columns of suitable dimensions to provide for
the following entries opposite the name of each elector, to wit:
37 Nev. 452, 454 (1914) State v. Keith
provides that the county commissioners shall furnish to each registry agent a book which
shall be known as the Official Register,' which shall be ruled in columns of suitable
dimensions to provide for the following entries opposite the name of each elector, to wit:
FirstNumber on the register.
SecondDate of registry.
ThirdName of elector.
* * * * * * * * * * * * *
EleventhDesignating the politics or political party of the elector; provided, that said
elector shall not be required to designate his politics or the political party to which he belongs
and the registry agent shall not be required to enter the same on the registry unless said
elector intends to vote at a primary election provided for by law; and in no event shall any
elector, who has refused or failed to indicate his politics or the political party to which he
belongs, as herein required, be entitled to vote to any primary election. (Stats. 1913, p. 495.)
Section 5 of the same chapter (Registration) provides:
It shall be the duty of the registry agents, at any time when called on to do so, * * * to
receive and register the names of all persons legally qualified and entitled to vote at such
election, * * * entering on the official register under the proper heading, the number and date
of registry, the name, * * * the age and nativity of the elector, * * * and when the person so
registered shall be of foreign birth, the fact of the exhibition of or failure to exhibit his
certificate of naturalization shall be noted in the column provided for that purpose, which list,
properly entered, as in this section required, shall be known as the Official Register' of
elections of their respective townships; * * * provided, further, that if any person shall fail or
refuse to give his residence and the other information, with the particularity required in this
section, he shall not be registered; * * * and provided further, that no person shall be deemed
to be registered for the September primary election unless he shall have been so registered on
or before the 20th day of August next preceding the date of such election."
37 Nev. 452, 455 (1914) State v. Keith
of August next preceding the date of such election. (Stats. 1913, p. 495.)
The powers and duties of a registry agent are matters of statutory regulation entirely. (15
Cyc. 304.) There is no provision in our election laws, such as exists in the laws of California,
specifically authorizing the registry agent upon affidavit of the registered elector filed before
the close of registration to change the political designation of an elector or to make such
designation where none was given at the time of registration. (Schostag v. Cator, 151 Cal.
604, 91 Pac. 503, cited and quoted from in Riter v. Douglass, 32 Nev. 436, 109 Pac. 444.)
The question came up in the Schostag case of the right of an elector to change his political
affiliation after the close of registration for the primaries and to vote the party primary ticket
of another party than that which the register showed him to be affiliated with. In denying the
right to so vote the court, speaking though Beatty, C. J., said:
It is contended that the test prescribed by section 1366A, Pol. Code, is unreasonable,
because, with the close of registration, the elector loses his right to change his party
allegiance in consequence of a change in his political convictions, and is precluded from
taking part in the election of delegates to the convention of the party with which on the day of
the election his more matured opinions would impel him to cast in his lot. This inconvenience
certainly does result from the provisions of the act, but the legislature, which must be
presumed to have foreseen it, probably regarded such sudden conversions during the short
interval between the close of registration and the date of the primary election as likely to be of
such rare occurrence as not to justify the omission of a provision evidently designed to
prevent unscrupulous and mercenary electors from holding themselves free down to the day
of election to vote with any party, upon any corrupt motive, for the purpose of influencing the
nomination of its candidates for public office, while without any interest in their success, and
perhaps with an interest in their defeat. If it shall sometimes happen that a conscientious
voter is converted from one political faith to another between the close of registration
and the primary election, he may console himself for the loss of his vote by the reflection
that his loss is trifling in comparison to his share of the advantage to the state of which he
is a citizen, flowing from a measure which tends to prevent a grave abuse, especially in
those centers of population where the primary election law is made obligatory."
37 Nev. 452, 456 (1914) State v. Keith
that a conscientious voter is converted from one political faith to another between the close of
registration and the primary election, he may console himself for the loss of his vote by the
reflection that his loss is trifling in comparison to his share of the advantage to the state of
which he is a citizen, flowing from a measure which tends to prevent a grave abuse,
especially in those centers of population where the primary election law is made obligatory.
In Stinson, v. Sweeney, 17 Nev. 309, 30 Pac. 997, it was held that he provisions of the
registry law, when necessary to preserve the purity of elections, should be strictly pursued.
We think the reasons which support a holding that the registration agent is without power
to change the political designation of an elector after he has once registered for the primary
election do not necessarily apply in the case where an elector at the time of registration fails
or refuses to give to the registry agent his party affiliation. The statute does not require the
registry agent to make note of such failure or refusal. The elector is properly registered so as
to entitle him to vote at the general election, but is not registered at all for the primary
election. If, before the close of registration for the primary election, such elector should apply
to the registry agent and request to be registered for such primary election, all that the registry
agent would be required to do would be to enter in the column provided for that purpose,
which theretofore remained blank, the party designation requested.
By section 4 of chapter 2, supra, the elector, at the time of registering, is not required to
designate his politics or the political party to which he belongs, and the registry agent is not
required to make any entry of political designation, where no such intent to vote is expressed.
Section 5 of the same chapter authorizes registration of an elector, in order to vote at the
primary election, to be made on or before the 20th day of August.
[3] Section 18 of chapter 3, supra, provides that the elector shall not be entitled to vote
at the primary election "unless he has heretofore designated to the registry agent his
politics."
37 Nev. 452, 457 (1914) State v. Keith
elector shall not be entitled to vote at the primary election unless he has heretofore
designated to the registry agent his politics. The word heretofore, as used in this section,
relates to the time in which an elector may lawfully be registered for the primary election. If
an elector registers for the general election, as he is authorized to do, on or before August 20,
without designating his party affiliation, at the most, he may be said to have manifested only
an intent not to vote at the primary election. Having the lawful right to vote at the primary
election, for which he is not registered at all, we can see no reason why he may not,
subsequently and before the primary registration closes, change his mind in so far as doing a
specific act is concerned, to wit, vote at the primary election and notify the registry agent of
his present intent to so vote, and request registration accordingly. The registry agent is not
called upon, in such case, to change any entry theretofore made upon the register, as would be
the case where an elector requested a change in his political designation, but simply to make
an entry in the blank space in the register prepared for the purpose, showing the elector has
qualified himself to vote at the primary. By making such an entry, as before stated,
registration for the primary election is thus effected where before no registration for such
election existed. Such a construction does no violence to the language of the statute, but is in
accordance with its plain import.
From the argument of respondent's counsel, we assume that respondent does not
contemplate making changes in the political designation of electors already registered for the
primary election. However, as the demurrer admits the facts alleged in the petition, it will be
ordered that a writ issue, upon application to the clerk therefor by the attorney-general,
prohibiting respondent from changing the political designation of electors registered for the
primary election.
As to the second question discussed in the opinion, the writ is denied.
____________
[No. 2137]
STATE OF NEVADA, Ex Rel. GEO. B. THATCHER, Petitioner. v. GEORGE BRODIGAN,
as Secretary of State, Respondent.
[142 Pac. 520]
1. TimeComputationExcluding Sunday.
Stats. 1913, c. 61, sec. 1, providing that whenever a secular act is to be performed on a particular day,
and that day is a nonjudicial one, the act may be performed on the next judicial day, does not permit a
nominee at a primary election to be held September 1 to file his papers on August 3, though August 2
falls on Sunday; section 7 of subchapter 3 of election law of 1913 (Stats. 1913, c.284) providing that such
papers shall be filed at least thirty days prior to the primary election.
2. ElectionsWithdrawal of Candidates at Primary Election.
Election law of 1913 (Stats. 1913, c. 284), subc. 3, sec.7, requiring a candidate filing nomination
papers for the primary election to make affidavit that he will not withdraw, does not prevent a candidate
who has filed his papers from withdrawing prior to the election, but he cannot withdraw where he is
without opposition and becomes the nominated candidate by virtue of Stats. 1913, c. 284, subc. 3, sec.
14, subd. 9, providing that the names of candidates who are without opposition shall not be printed on the
primary ballot, but shall be certified as the party nominees.
3. ElectionsNominees at PrimaryEffect of Withdrawal.
Where, in such case, one of two opposing nominees withdrew after the time for filing nomination
papers, but before the primary election, the other nominee became the candidate by operation of Stats.
1913, c. 284, subc. 3, sec. 14, subd. 9, and the secretary of state must certify his name as the candidate of
his party, though he filed withdrawal papers before the primary election but, after the withdrawal of the
other candidate for nomination.
4. ElectionsNomination PapersRight to Change Party.
Under election law of 1913 (Stats. 1913, c. 284), subc. 3, sec. 7, providing that a candidate at a
primary election shall declare in his nomination papers that he intends to support the principles of the
party of which he is a candidate, and that he voted for a majority of the candidates of such party at the
last election, one who has filed nomination papers as a candidate of a designated party at the primary
election cannot file another nomination paper designating himself as a candidate of another party for the
same office.
5. ElectionsFiling FeeWithdrawalRefundment.
One who files nomination papers under the election law of 1913 (Stats. 1913, c. 284), subc. 3, sec. 9,
providing that the candidate filing such papers shall pay to the secretary of state a fee for such filing,
is not entitled to a return of such fee on his withdrawal as a candidate prior to the primary
election, though such fee is required to be paid into the state treasury.
fee on his withdrawal as a candidate prior to the primary election, though such fee is required to be paid
into the state treasury.
Norcross, J., dissenting, except as to 4, supra.
Original Proceeding in prohibition by the State, on the relation of Geo. B. Thatcher,
against George Brodigan, Secretary of State. Write issued.
Geo. B. Thatcher, Attorney-General, and W. W. Griffin, for Petitioner.
Summerfield & Richards, George Springmeyer, and Richard A. McKay, for Respondent.
By this action, the petitioner, the attorney-general, seeks to compel the secretary of state to
certify the names of Raymond A. Gott and Richard A. McKay as candidates for the
Republican nomination for the office of attorney-general. by the same action petitioner seeks
to prohibit the secretary of state from certifying the name of George Springmeyer as a
Republican candidate for the office of attorney-general.
As appears from the petition, Richard A. McKay and Raymond A. Gott, respectively, filed
their nomination papers for the Republican nomination for the office of attorney-general with
the secretary of state on the 1st day of August, 1914. Thereafter and on the 3d day of August,
1914, Raymond A. Gott filed an instrument withdrawing his name as a candidate for the
Republican nomination, and on the same day, and some half hour later Richard A. McKay
filed a similar instrument with the secretary of state also requesting that his name be not
placed on the ballot for the Republican nomination for attorney-general at the September
primary election.
It appears from the petition that on the 27th day of June, 1914, George Springmeyer filed
in due form his nomination paper as a candidate for the Progressive nomination for the office
of attorney-general, and paid the requisite fee therefor. On the 1st day of August, 1914, the
said Springmeyer filed a second paper in the office of the secretary of state, which paper
is as follows:
the said Springmeyer filed a second paper in the office of the secretary of state, which paper
is as follows:
State of Nevada, County of Ormsbyss.
For the purpose of having my name placed on the official primary election ballot as a
candidate for nomination by the Republican party as its candidate for the office of
attorney-general of the State of Nevada, I, the undersigned George Springmeyer, do solemnly
swear that I reside at No. 416 South Virginia Street, in the city of Reno, county of Washoe,
State of Nevada, and that I am a qualified elector of the election precinct in which I reside;
that I am a member of the Progressive party, and affiliated with that party at the last general
election, and voted for a majority of the candidates of such party at the last general election;
that there is a substantial fusion between the Republican and Progressive parties in this state
at the present time; that I believe in and intend to support the principles and policies of both
such political parties, as represented by such fusion, and that I intend to vote for a majority of
the candidates of the Progressive party and as well of the Republican party at the ensuing
election; that, if nominated as a candidate of said Republican party at said ensuing election, I
will accept such nomination, and not withdraw; that I will not knowingly violate any election
law or any law defining and prohibiting corrupt and fraudulent practice in campaigns and
elections in this state; and that I will qualify for said office if elected thereto.
[Signed] George Springmeyer.
Two propositions are presented in this matter: First, may Richard A. McKay and Raymond
A. Gott withdraw their names from the list of candidates to be certified by the secretary of
state to the various county clerks, they having once filed their nomination papers for the
purpose of having their names placed on the official primary election ballot as candidates for
nomination by the Republican party and as its candidate for the office of attorney-general?
Second, where a party has filed his nomination paper for the purpose of having his name
placed on the official primary ballot as a candidate for nomination by one recognized
party, may he thereafter have his name placed on the primary ballot as a candidate of
another recognized party, and thereby become a candidate for the nomination of two
separate and distinct parties for a given office at the same primary, when he is unable to
file a nomination certificate complying with all the conditions demanded by the statute?
official primary ballot as a candidate for nomination by one recognized party, may he
thereafter have his name placed on the primary ballot as a candidate of another recognized
party, and thereby become a candidate for the nomination of two separate and distinct parties
for a given office at the same primary, when he is unable to file a nomination certificate
complying with all the conditions demanded by the statute?
The legislature of 1913 passed an act entitled An act relating to elections and removals
from office, in which act chapter 3 has to do with primary elections. Section 7 of the chapter
is as follows:
The name of no candidate shall be printed on an official ballot used at any primary
election unless, at least thirty days prior to the primary election, if the candidate is to be voted
for at the September primary election, and at least fourteen days prior to the primary election
other than the September primary election, he shall file a nomination paper with the proper
official as hereinafter provided by this act, such nomination paper to be under oath and in
substantially the following form:
Nomination Paper of.........., for the Office of..........
State of Nevada, County of.........., ss.
For the purpose of having my name placed on the official primary election ballot as a
candidate for nomination by the..........party as its candidate for the office of.........., I, the
undersigned,.........., do solemnly swear (or affirm) that I reside at No........... ..........Street, in
the city (or town) of.........., county of.........., State of Nevada, and that I am a qualified elector
of the election precinct in which I reside; that I am a member of the..........party; that I believe
in and intend to support the principles and policies of such political party in the coming
election; that I affiliated with such party at the last general election of this state and I voted
for a majority of the candidates of such party at the last general election (or did not vote at
such general election, giving reasons); that I intend to vote for a majority of the candidates of
said party at the ensuing election for which I seek to be a candidate; that if nominated as a
candidate of said ___ party at said ensuing election I will accept such nomination and not
withdraw; that I will not knowingly violate any election law or any law defining and
prohibiting corrupt and fraudulent practice in campaigns and elections in this state; and
that I will qualify for said office if elected thereto.
a candidate; that if nominated as a candidate of said ___ party at said ensuing election I will
accept such nomination and not withdraw; that I will not knowingly violate any election law
or any law defining and prohibiting corrupt and fraudulent practice in campaigns and
elections in this state; and that I will qualify for said office if elected thereto. * * * (Stats.
1913, c. 284.)
[1] It is suggested by the attorney-general, petitioner herein, that inasmuch as under our
law the primary election being set for the first Tuesday in September, and coming as it does
on this occasion on the first day of September, and as the last day of filing nomination papers
fell on Sunday, the 2d day of August, a nonjudicial day, nomination papers might be filed on
Monday, the 3d of August. We are referred by petitioner to an act of the legislature of 1913,
which provides:
Whenever any act of a secular nature, other than a work of necessity or mercy, is
appointed by law or contract to be performed upon a particular day, which day falls upon a
holiday or a nonjudicial day, it may be performed upon the next business day with the same
effect as if it had been performed upon the day appointed, and if such act is to be performed
at a particular hour it may be performed at the same hour on the next business day. (Stats.
1913, p. 49.)
An identical statutory provision was construed by the Supreme Court of Idaho in a case
very much analogous to the one at bar. (Seawell v. Gifford, Secretary of State, 22 Idaho, 295,
125 Pac. 184, Ann. Cas. 1914a, 1132.) In this case it was held that under such statute at least
thirty days must intervene between the date of the filing and the day of the primary election.
We think the reasoning in this case is applicable to the matter at bar, in so far as it answers
the suggestion of petitioner.
[2-3] Section 14, c. 3, of the Statutes of 1913 provides:
9. Where there is no party contest for any office the name of the candidate for party
nomination shall be omitted from the ballot and shall be certified by the proper officer as a
nominee of his party for such office.
In the case of State of Nevada, ex rel. Donnelley, v. Hamilton, 33 Nev. 418, 111 Pac. 1026,
this court held that the question whether a candidate nominated at the 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 the primary, the
court cannot allow candidates to withdraw even for deserving reasons.
It will be observed that the form of affidavit prescribed by section 7, c. 3, of the act
requires the candidate, in filing his nomination paper, to make affidavit that, if nominated as
the candidate of his party at the ensuring primary election, he will accept such nomination
and not withdraw.
The decision in the case of Donnelley v. Hamilton, supra, dwelt upon the question of
withdrawal after nomination. The question at bar is the right of one who had filed his
nomination paper, but whose name has not as yet been certified by the secretary of state, to
withdraw prior to the primary election.
Under the provisions of section 14, chap. 3, a party who had filed his nomination paper
with the secretary of state within the time and who at the expiration of the time allowed by
law had no opposition for his party nomination is entitled to a certificate from the secretary of
state declaring him the nominee of his party.
If either of the parties seeking now to have their names withdrawn were without
opposition, or, in other words, if they did not oppose each other for the nomination of a
designated party, in our judgment, they could not, under our interpretation of section 14
heretofore set forth, withdraw, because, under those conditions, either one standing alone
would immediately, upon the expiration of the time for filing nomination papers, become the
nominee of his party, and, under the rule as asserted in the Donnelley-Hamilton case, supra,
he could not withdraw.
But in this case neither of the parties who filed their nomination papers with the secretary
of state and who now seeks to withdraw could be considered as the nominee of their party
until one or the other had been eliminated by the primary election of September 1, or one
or the other had withdrawn.
nominee of their party until one or the other had been eliminated by the primary election of
September 1, or one or the other had withdrawn.
There are no specific provisions in the statute of 1913 prohibiting withdrawals, excepting
that which appears in section 14 heretofore set forth, and which becomes operative only
where the circumstances of an individual candidate without opposition make it operative. We
find nothing in the statute that even impliedly prohibits a candidate for party nomination from
withdrawing from a contest for that nomination. The provision of the statute requiring a
candidate to take an oath that he will not withdraw, if nominated, may reasonably imply, in
our judgment, that prior to his receiving the nomination he may withdraw.
The reasoning and the rule which would prohibit one already nominated from withdrawing
does not, in our judgment, apply to one who had not secured the nomination either by party
expression in the primary election, or statutory provision, such as that of section 14, subd. 9.
In the case at bar, as we view it, there was nothing in the law which would prevent the first
party applying to withdraw from having his application complied with. In other words,
Raymond A. Gott, having applied to the secretary of state to have his name withdrawn, could,
in our judgment, properly have that request complied with. As soon, however, as his name
was withdrawn, the other party to the contest for Republican nomination, namely, Richard A.
McKay, became, by operation of the law (subd. 9, sec. 14) the party nominee for the office of
attorney-general, and, having become the party nominee, under the statute, and under the rule
as laid down by this court in the case of Donnelley v. Hamilton, supra, he could not
withdraw.
[4] As to the second question, the statute prescribes the form of affidavit to be made by
way of nomination paper, and declares that nomination papers shall be in substantial form as
prescribed. By this declaration of the statute it is our judgment that the legislature intended
that the substantial elements of the prescribed affidavit should be contained in the
affidavit made by the party seeking nomination, and the substantial elements in the
prescribed affidavits, as we read it, are:
substantial elements of the prescribed affidavit should be contained in the affidavit made by
the party seeking nomination, and the substantial elements in the prescribed affidavits, as we
read it, are:
FirstDesire of the party to have his name placed on the primary ballot.
SecondDesignation of the office for which he seeks party nomination.
ThirdPlace of residence, giving the city or town and locality therein, together with the
county of the state in which the city or town may be located.
FourthQualified electorship in the precinct in which he declares his residence.
FifthDeclaration of party membership, together with the declaration of intent to support
the principles of such party at the coming election.
SixthDeclaration of having affiliated with that same party at the last general election
held in this state.
SeventhDeclaration that he voted for a majority of the candidates of that party at such
last general election, or that he did not vote at all.
EighthDeclaration that he intends to vote for a majority of the candidates of that party of
which he is a member and whose principles he intends to support at the ensuing election, in
which he seeks to be a candidate.
NinthThat, if nominated by that party, he will accept such nomination, and not
withdraw.
TenthDeclaration of intention to comply with election laws.
EleventhDeclaration that, if elected to the office which he seeks, he will qualify for such
office.
By these declarations under oath, made prerequisite for one seeking party nomination, it
was undoubtedly intended to require the applicant to declare the party of which he was a
member and with which he affiliated at the last general election, and this must be the same
party under whose party designation he seeks the nomination at the ensuing primary. Every
substantial element of the nomination paper and the oath therein prescribed precludes the
idea of an applicant for nomination seeking the nomination of two distinct parties at the
same primary.
prescribed precludes the idea of an applicant for nomination seeking the nomination of two
distinct parties at the same primary.
The object of the primary law, generally speaking, was to avoid those things which under
the old convention system were believed to be corrupt. The spirit of the law was to get a
popular expression as to choice of candidates from the membership of the respective political
parties within the state. The various changes, amendments, and modifications of our primary
laws that have been enacted by recent legislatures have had for their purpose and aim the
elimination of one political party from the primary election of another, the object being to
prevent one political party from interfering with another as to the selection of party nominees
for the various offices.
In the case at bar, Mr. Springmeyer, having filed his nomination paper in due form for the
nomination for attorney-general on the Progressive party, could not, as we view the law,
successfully apply for the nomination on a different party. Moreover, his paper seeking
nomination on the Republican party and the declarations therein contained are not even
substantially in conformity with the substance of the nomination paper prescribed by section
7, chapter 3, of the election laws of Nevada.
[5] Section 9 of chapter 3 of the election laws of Nevada provides:
Any candidate filing a nomination paper as provided in section 5a with the proper officer,
as provided in section 6, shall pay to such officer a fee for such filing as follows:
If a candidate for nomination for any state office, or any district office voted in more than
one county, or representative or United States senator in Congress, one hundred dollars.
By the provisions of the statute set forth above the money paid by a candidate filing a
nomination paper is paid to the secretary of state in this instance as a fee for such filing. In
the case at bar the services of the secretary of state were performed in the way of filing the
nomination paper for which it appears from the record that the nomination paper of
Raymond A.
the nomination paper for which it appears from the record that the nomination paper of
Raymond A. Gott was filed with the secretary of state and all the services required of the
secretary of state in the way of filing were duly performed. The ministerial officer of the state,
to wit, the secretary of state, having performed the services required of him under the law,
was entitled to the fee designated by section 9 of chapter 3 of the act, and the fact that this fee
so paid was thereafter to be turned over to the state treasurer, as other moneys collected by the
secretary of state are turned over to the state treasurer for ministerial services performed, did
not change the nature of the fee, and the same, having been paid to the secretary of state for
filing services performed, cannot, in our judgment, be returned to the party seeking to have
his name withdrawn. This might properly be considered in the nature of a forfeiture, but that
is unnecessary for us to determine in this instance.
For the foregoing reasons the writ of prohibition should issue directed against the secretary
of state, prohibiting him from certifying the name of George Springmeyer as a candidate for
the nomination of the Republican party for the office of attorney-general, and the writ should
also issue prohibiting the secretary of state from allowing the name of Richard A. McKay to
be withdrawn. The writ should also issue prohibiting the secretary of state from returning the
filing fee paid by Raymond A. Gott.
It is so ordered.
I dissent from the opinion and order except in so far as it prohibits the secretary of state
from certifying the name of George Springmeyer as a candidate for the Republican
nomination for the office of attorney-general. The statute requiring a substantial compliance
with the form of affidavit prescribed for candidates is, I think, not complied with. It is
incumbent upon the candidate, among other things, to set forth substantially that he is a
member of a certain political partyin this case the Republican party.
among other things, to set forth substantially that he is a member of a certain political
partyin this case the Republican party.
In the matter of the withdrawal of McKay I cannot concur. Even if my learned associates
had not cared at this time to overrule the decision in State v. Hamilton, there was room, in my
judgment, to distinguish the present case from the Hamilton case. As I expressed my views
very fully in the dissenting opinion in the Hamilton case (33 Nev. 427), I shall add but little to
what I there said. To hold that a mere requirement in an affidavit of candidacythat if
nominated, he will accept such nomination and not withdraw and that he will qualify as such
officer, if nominated and electedis equivalent to a statutory prohibition against a candidate
withdrawing, to my mind, is an unwarranted construction to be placed on the statute. Such
holding attributes to the legislature an intent virtually to make death the only means by which
the name of primary candidates or party nominees may be removed from an official ballot.
All the unforeseen conditions which may unexpectedly befall a man are to be of no avail after
he has once made an affidavit of candidacy. The dominant party of the state, in the event its
candidates for governor or senator, from some unforeseen cause, are rendered incapable of
continuing to be a candidate or from qualifying if elected, is impotent to relieve itself from
the condition which the court holds this affidavit places a party and a candidate in. The
legislature intended that a candidate should express his good faith by making the prescribed
affidavit. It cannot be held to have intended that the success of a great party must depend
upon the slender thread that unforeseen conditions will not befall its leading candidates such
as to virtually incapacitate them from election or from continuing as active candidates.
Nothing, as I see it, sands in the way to prevent a party being compelled to go to the general
election with one or more incapacitated candidates except the benign interposition of Divine
Providence.
____________
37 Nev. 469, 469 (1914) Malmstrom v. People's Ditch Co.
[No. 1844]
A. A. MALMSTROM and JOSIE MALMSTROM (His Wife), Respondents, v. PEOPLE'S
DRAIN DITCH COMPANY (a Corporation), Appellant.
[143 Pac. 238]
1. Waters and WatercoursesIrrigation DitchesInjury from Escaping Water.
The injury to plaintiff's premises from water being from percolation near the surface, regardless of
defendant's irrigation ditch, and from overflow caused by plaintiff decreasing the size of the ditch and
lowering its banks, defendant is not liable.
On Rehearing. Decision reaffirmed.
Summerfield & Curler, for Appellant.
C. R. Lewers, for Respondents.
After reargument and further consideration we feel constrained to adhere to our decision as
originally rendered in this case. Under the evidence disclosed by the record and the facts
appearing therefrom, as detailed in the opinion (32 Nev. 255-259, 107 Pac. 98), we are unable
to escape the conclusion that the damage sustained by the plaintiffs was caused by their own
acts and the fact that during the irrigating season the water percolated near the surface of the
ground on their lots and in that vicinity, regardless of the ditch of the defendant. From the
testimony of the plaintiffs it appears that they narrowed and deepened the ditch for a short
distance on their land and leveled their land adjoining the ditch. The making of the ditch
deeper on their lots than it was a little lower down would not materially increase its capacity,
while narrowing it decreased its capacity. The facts that the water flowed over a break in the
bank of the ditch lower down and stood from the break over the land away from the ditch,
and up to and over the banks of the ditch on the plaintiffs' lots, and that the water did not run
over the banks on their lots before they disturbed the ditch, indicate that they lowered the
banks.
37 Nev. 468, 470 (1914) Malmstrom v. People's Ditch Co.
As the damage resulted from these conditions, which were caused by the plaintiffs, and from
the water which percolated through the ground in the vicinity of the lots, so far as the record
shows the defendant is not liable for damages.
The judgment will stand reversed and the cause is remanded for a new trial.
____________
37 Nev. 470, 470 (1914) Ward v. Pittsburg Silver Peak Mining Co.
[No. 2120]
WALTER WARD, Respondent, v. PITTSBURG SILVER PEAK MINING COMPANY (A
[143 Pac. 119]
1. Appeal and ErrorRecordStriking OutConsidering Minutes of Court.
Whether there shall be stricken from the files on appeal from an order refusing a new trial, a transcript
of the testimony and proceedings certified by the reporter, but with nothing to indicate that it had been
agreed on by counsel or settled and allowed by the court as a statement on appeal, or that it was used at
the hearing on the motion for the new trial, depends on whether or not the minutes of the court, offered by
appellant under the rule as to diminution of the record, when admitted, show it is in some way properly
connected with the appeal.
2. Exceptions, Bill ofSettlementContents.
The bill of exceptions under which, in some instances, an appeal may be taken, is to be settled by the
court, and, unlike a memorandum of exceptions for motion for new trial for errors of law at the trial, need
not contain a statement of counsel that in his judgment the exceptions are well taken.
3. Exceptions, Bill ofImproper Titling.
Though improperly labeled a memorandum of exceptions, an instrument is a bill of exceptions on
which appeal may be taken, if properly settled as such.
4. Appeal and ErrorDenial of New TrialExceptions Considered.
An exception, properly before and considered by the court in denying a motion for new trial, may be
considered on appeal from the order denying the motion, though it might have been made the basis of a
direct appeal from the judgment.
5. Appeal and ErrorTime of TakingDismissal.
The appeal from the judgment, not being taken within the six months from its rendition limited by
statute, will be dismissed.
Judge.
Action by Walter Ward against the Pittsburg Silver Peak Gold Mining Company. Plaintiff
had judgment. Motion for new trial was denied, and defendant appeals. Plaintiff moves to
dismiss the appeal and strike papers from the files. Appeal from judgment dismissed. Other
motions denied, subject to consideration on hearing on merits.
Samuel Platt and George Martinson, for Appellant.
Dixon & Miller, for Respondent.
Respondent has moved to dismiss the appeal on the grounds that no appeal was taken
within six months after the entry of the judgment in the district court, and that appellant did
not, within twenty days after the rendition of the judgment, or within twenty days after the
making of the order denying the motion for a new trial, or at any time, file or serve any
statement on appeal. The judgment was entered on the 24th day of May, 1913, in favor of the
plaintiff. The order denying the motion for a new trial was made on the 26th day of January,
1914. Notice of appeal was filed and served on the 9th day of February, 1914, and within the
sixty days allowed by the statute for appealing from an order refusing a new trial, but not
within the six months after rendition allowed for appeal from the final judgment.
A Memorandum of Exceptions, so entitled, and prefaced with the statement that the
following memorandum of exceptions is herewith submitted and relied upon in support of
defendant's motion for a new trial, appears in the record, with an indorsement signed by the
district judge, stating that the above exceptions, and each and all of them, are hereby and
herewith allowed. The certificate of the clerk, dated the 9th day of February, 1914, is
attached, stating that the bill of exceptions was filed in his office on the 30th day of
October, 1913, and on the same day duly served on the adverse party, and that no
amendments to said memorandum of exceptions have been propose or filed."
in his office on the 30th day of October, 1913, and on the same day duly served on the
adverse party, and that no amendments to said memorandum of exceptions have been propose
or filed.
[1-3] Respondent moves to strike from the files a transcript of the testimony and
proceedings, indorsed Transcript on Appeal, and certified by the official court reporter as
being a full, true, and accurate statement of the proceedings had and testimony taken on the
trial, excepting on one day. There is nothing to indicate that this statement has been agreed
upon by counsel or settled and allowed by the court as a statement on appeal or that it was
used at the hearing on motion for a new trial.
Under the rule relating to the diminution of the record, appellant offers the minutes of the
court. Unless these, when admitted, show that the transcript of the testimony and proceedings
is in some way properly considered with this appeal, respondent may renew his motion to
have this transcript stricken from the files. The question as to whether other papers should be
eliminated from the files may be considered in practice as similar to what we conclude
regarding the memorandum of exceptions. Under the different provisions of the practice act
intended to simplify appeals, they may be taken in some instances under bills of exceptions,
which are distinguishable from the memorandum of exceptions required when a motion for a
new trial is made because of error in law occurring at the trial. The statute is specific in
demanding that this memorandum shall contain a verified statement of the attorney that in his
judgment the exceptions relied upon are well taken in the law. Differently, the bill of
exceptions upon which an appeal is taken is one to be settled by the judge. If such a bill of
exceptions were so properly settled, it would be a bill of exceptions upon which an appeal
could be taken, although it might be improperly labeled a memorandum of exceptions.
[4] The preface and affidavit indicate that the memorandum of exceptions in this case was
intended, originally, at least, for use on the motion for a new trial, instead of as a bill of
exceptions upon which to base a direct appeal.
However, so much of the memorandum of exceptions as was properly before and considered
by the judge on the hearing of the motion for a new trial may be considered here on the
appeal from the order denying the motion for a new trial. For illustration, the first exception
specified in the memorandum was the denial of the motion that the action be dismissed upon
the ground that the complaint does not state facts sufficient to constitute a cause of action.
The appellant could have had this exception settled or allowed by the judge and appealed
upon it directly from the judgment without the formality of a motion for a new trial or a
statement on appeal, which ordinarily should be presented when questions relating to the
sufficiency of the evidence are involved, so that the respondent should have an opportunity to
present amendments to the statement. As the defendant-appellant preferred to first present
this and other questions to the district judge on the motion for a new trial, this court may
consider the same on appeal from the order denying the motion for a new trial, because this is
one of the exceptions considered by the district court before such denial.
The case will be retained for consideration on appeal for such questions as may duly
appear from the record and from the minutes of the court when admitted to have been
properly before and considered by the district judge in passing upon the motion for anew trial.
The papers, not appearing to have been before or so considered by the court upon the hearing
of the motion for a new trial, or properly before this court, may later be stricken from the
files. As to which papers these should be, counsel may present their views when argument is
had upon the merits.
[5] The appeal from the judgment is dismissed because not taken within six months after
rendition. The other motions of the respondent are denied for the present, subject to the right
of the court to eliminate from the files any papers after the minutes which will be admitted
have been considered and argument had.
____________
37 Nev. 474, 474 (1914) Torp v. Clemons
[No. 2109]
N. B. TORP, LIZZIE REED, WALTER FRENCH, ROBIN FRENCH, and EMMA
ROBINSON, Respondents, v. J. H. CLEMONS, Appellant.
[142 Pac. 1115]
1. New TrialMotionServiceFilingTimeExtensionStatutes.
Though the provisions of Cutting's Compilation, sec. 3292, authorizing an enlargement of the time for
service and filing of a motion for a new trial by stipulation of the parties, or on good cause shown, by the
court or judge before whom the cause was tried, was not carried forward into the Revised Laws, yet
where the parties stipulated for an extension of time beyond the ten days specified in Rev. Laws, sec.
5323, within which defendant might serve and file his notice of intention to move for a new trial, such
stipulation was a waiver of plaintiff's right to object that the motion was not in time.
2. Appeal and ErrorReviewFindingsConflicting Evidence.
In a suit to establish and enforce a trust a finding of the existence of the trust, based on substantially
conflicting evidence, will not be reversed on appeal.
3. TrustsResulting TrustPersonal PropertyEvidence.
In a suit to establish a resulting trust in corporate stock, evidence held insufficient to sustain a finding
that the trust existed as to more than fifty shares of the stock.
4. WitnessesCompetencyTransactions with Person Since Deceased.
In a suit to declare and enforce a resulting trust as to corporate stock alleged to be held by defendant
as trustee for plaintiff's testator, defendant was precluded by Rev. Laws, sec. 5419, from testifying as to
any transactions between himself and testator.
5. WitnessesCompetencyDisqualificationTransactions with Person Since Deceased.
Rev. Laws, sec. 5419, disqualifying a witness to testify to any transactions between himself and a
person since deceased, does not disqualify the witness to testify as to matters brought out by opposing
witnesses outside the transaction and out of the presence and hearing of the person who had since died.
6. Trover and ConversionDamagesValue of Property.
In a suit to compel an alleged trustee to account for the value of corporate stock alleged to have been
converted by him, plaintiff's measure of damages was the market value of the stock at the time of the
conversion, and evidence of its value at a subsequent time, more than two years thereafter, was
inadmissible and insufficiency on which to predicate judgment.
Judge.
Suit by N. B. Torp and others against J. H. Clemons. From a judgment for plaintiffs,
defendant appeals. Reversed and remanded.
This is an action brought by N.B. Torp and others, claiming to be legatees under the last
will and testament of J. B. Overton, against J. H. Clemons, named as executor of said will
and residuary legatee of the estate of the said Overton, deceased.
The action was brought in the district court to set aside the decree of settlement of the first
and final accounting of the executor, and to set aside the order of final distribution of the
estate of J. B. Overton, as theretofore made and entered, and to compel J. H. Clemons, as
executor of the will of J. B. Overton, deceased, to account for 160 shares of the preferred
stock of the Oakland Traction Company and the avails thereof.
The court below, at the conclusion of the trial, found, among other things, that on or about
the 13th day of December, 1907, J. B. Overton was the owner of and in possession of and
transferred and delivered to the defendant Clemons 160 shares of the capital stock of the
Oakland Traction Company, a corporation organized and existing under and by virtue of the
laws of the State of California, and of the par value of $16,000; that said transfer was made to
the said defendant in trust for the said J. B. Overton; that the defendant paid no consideration
therefor, but then and there promised and agreed with the said J. B. Overton to hold said
stock certificates, representing the same to the use and benefit of the said J. B. Overton, and
to turn the same over to the said J. B. Overton upon demand. The court further found that
demand was made by the said J. B. Overton to the defendant for the return of said stock, and
that the defendant failed and refused to return the said stock to the said Overton.
to the said Overton. The court further found that the said stock was wrongfully converted by
the defendant Clemons to his own use on or about the 10th day of June, 1909, and that the
market value thereof at said time was $90 per share, and that the total value of said stock, as
converted, was at the time of the conversion, $14,400. Judgment was accordingly entered in
favor of plaintiffs that the decree of settlement of the first and final accounting of the
executor, and the order of final distribution of the estate of J. B. Overton, be vacated,
annulled, and set aside. From the judgment and order refusing a new trial, appeal is taken.
It is the contention of respondent in this case that none of the grounds assigned as error can
be considered by this court, for the reason that the statement upon appeal in this case does not
contain assignments of error covering the same or any assignments of error whatsoever. It is
our judgment, however, in this respect that a sufficient compliance with the statute appears,
and the errors assigned and excepted to were duly presented and brought to the attention of
the trial court on the motion for a new trial and are bought here in connection with and
attached to the transcript on appeal.
[1] Respondents contend that the trial court had no jurisdictional authority to hear the
motion for a new trial, for the reason that the notice of intention to move for a new trial was
not served or filed within ten days after defendant had received notice of the decision of the
court, as provided by section 5323 of the Revised Laws. It is disclosed by the record that
stipulation was entered into by counsel for appellant and respondent as follow:
It is hereby stipulated and agreed by and between the above-named plaintiffs and
defendant named above that defendant may have until and including the 22d day of August,
1913, in which to serve and file his notice of intention to move for a new trial in the
above-entitled action.
It is the contention of the respondents herein that, notwithstanding this stipulation, the
court had no jurisdiction to hear the motion for a new trial. Under the old practice act (Comp.
Laws 1873, sec. 1258; Cutting's Compilation, sec.
Compilation, sec. 3292), it was provided that the several periods of time limited may be
enlarge by the written agreement of the parties, or upon good cause shown by the court or
judge before whom the cause was tried. This special provision appears to have been
eliminated in the new code of civil procedure.
It is our judgment that, notwithstanding the change in procedure, as appears in the Revised
Laws, the stipulation, as entered into in this case, was a waiver of objection on the part of the
respondent.
[2] The evidence in support of a trust relation is, in our judgment, exceedingly conflicting,
consisting, as it does, in most part of testimony of the relatives of beneficiaries under the will
of Overton, whose testimony is principally as to the statements and declarations made by the
deceased, Overton, relative to stock held by the appellant, Clemons. The testimony, as it is
presented in the record, falls far short of binding conviction to our mind as to the existence of
a trust between Clemons and Overton, but as there is a substantial conflict in the testimony,
and there is some substantial evidence in support of the finding of a trust, the conclusion of
the trial court in this respect, in view of the long-established rule of this court, will not be
disturbed.
This case, however, presents another phase; i. e., the amount of stock transferred from
Overton to Clemons which became subject to the trust. The testimony of Mrs. W. H. French,
as well as that of Mrs. Clara M. Willis, is to the effect that in their hearing and presence, on
several different occasions, the deceased, Overton, made demand of appellant, Clemons, for
the stock of the Oakland Traction Company, held by him, and in that connection a certain
written demand was identified by the witness, Mrs. French, and introduced in evidence, the
contents of which is as follows:
Everett, Washington, June 10, 1909.
Mr. J. H. Clemons, 404 So. Virginia St., Reno, NevadaDear Sir: I hereby make formal
demand on you for return of 160 shares (160) of preferred stock of the Oakland Traction
Company (or whatever its legal name may be) of Oakland, California, the said stock having
been placed in your hands in trust for me and subject to my demand at any time.
be) of Oakland, California, the said stock having been placed in your hands in trust for me
and subject to my demand at any time. I have asked you several times to send this stock to me
and now make formal written demand that you deliver all of said stock properly indorsed to
H. R. Willis, of Everett, Washington, for such disposition as I may direct. J. B. Overton.
Two days prior to the date of this instrument, the deceased, Overton, wrote a letter in his
own hand to the appellant, Clemons, which is as follows:
Seattle, June 8, 1909.
My Dear Jay: I will try and write to you to try and get an answer from you to let me know
how you are progressing in your suit defending the Oakland property. Who have you for a
lawyer? All you can do is to defend it as your property, and is not liable for any of the
deposits in any bank nor was not when you bought it. The sale was made before depositors
had made any claim and the bank was claiming that the bank wak, was solvent, and there can
be no lien on the stockholders' property until have complained in some court record. If they
get a judgment against me, and not against your property, and a judgment against me don't
amount to anything as I have no property and don't want any. If you could manage to spare
me the traction stock it would make it easy for me, and I could help you some, and I need it
very much. It was bought with my money, and if you could indorse it and send it to me I
would be able to do something that would benefit both of us. I can't see and I hope you will
have no difficulty in making it out. If you want anything from me, let me know, and I will try
and respond.
Lovingly yours, J. B. Overton.
It is disclosed by the testimony of Mrs. French, at whose home, in the State of
Washington, the deceased, Overton, lived for some years and was abiding in at the date of the
instrument, that the eyesight of the deceased was very poor, and in that respect she testified
that he could not read very well. If we held a magnifying glass for him he could see to
read."
for him he could see to read. This, together with his own statement, as set forth in his letter
to the appellant, Clemons, wherein he states, I cannot see and I hope your will have no
difficulty in making it out, indicates the physical condition, and emphasizes the physical
infirmities of the decedent at the time at which the written demand purports to have been
made, and this disclosure makes it manifest that the deceased, Overton, was unable to read
the contents of the written demand, and was therefore dependent upon others to read it for
him. The tenor and substance of the written demand, which was admittedly typewritten by
another, presents a striking contrast to the expressions in the letter written by himself two
days prior thereto.
By the testimony of the witness Whitehead, it is disclosed that the deceased stated that the
appellant, Clemons, was his adopted son.
In his letter of June 8, addressed to the appellant, Clemons, there is no mention of the
number of shares of stock owned, nor is there any expression from which one might infer the
existence of a trust or an obligation on the part of Clemons to return the stock to the writer.
He says, If you could manage to spare me the traction stock it would make it easy for me and
I could help you some.
It is the contention of the appellant herein that, if any trust relation existed between the
deceased, Overton, and appellant, it could not affect more than fifty shares of stock of the
Oakland Traction Company, and, in that respect, the testimony of the witness Taylor,
secretary of the Oakland Traction Company, is especially pertinent.
The witness Taylor testified that on the 13th of December, 1907, there were fifty shares of
stock of the Oakland Traction Company held by J. B. Overton. He testified that that was the
only stock then held by J. B. Overton, and further testified that it was the only stock
transaction in which the name of J. B. Overton appeared on the books of the corporation. The
stock then held by J. B. Overton was represented by a certificate No. 949; that certificate
having been issued to Overton June 2, 1907.
that certificate having been issued to Overton June 2, 1907. The witness Taylor testified in his
deposition that on the 13th of December, 1907, he, as secretary of the company, received an
order from an agent of the company for 110 shares of preferred capital stock, to be issued to
J. H. Clemons. He says:
This paper I have before me is the ordinary blank used by the Realty Syndicate, dated
December 13, 1907, and calls for the transfer from the holdings of the Realty Syndicate 110
shares of preferred capital stock of the Oakland Traction Company, to be issued to J. H.
Clemons. With that was surrendered certificate 949 in the name of J. B. Overton, showing
that 60 additional shares went to J. H. Clemons. The record shows that that was
transferredthe 50 shares of Overton were transferred to Taylor, trustee, in order to get the
110 for Clemons, as there was only an actual issue of 60 additional shares; the 110 including
the 50 from certificate 949. To facilitate business, the stock of the Realty Syndicate is in my
name as trustee, and transfers are made back and forth.
At another place in his deposition, the witness Taylor says:
The authority for transferring 60 additional shares at that time was the order signed by
Mr. Chase, one of the agents of the company.
At another place the witness Taylor said:
As secretary of the Oakland Traction Company, I was called upon to issue 110 shares of
preferred stock to J. H. Clemons. Our sales that day were 60 shares. I called for the other 50
shares for the transfer, to make upon the amount. I was given the certificate of J. B. Overton,
No. 949, to make up the difference.
Testifying as to who was present at the time of the making of this transfer on December
13,1907, the witness said:
Q. (by Mr. Heer). From whom did you receive the certificate for the 50 shares? * * * A. I
don't remember.
Q. Was Mr. Overton present at the time you received it? A. No.
When interrogated as to who produced the certificate No. 949 for the 50 shares in the
name of Overton, the witness Taylor testified:
I don't remember whether it was a boy, or Mr. Chase, or a messenger who delivered this
order. I have forgotten just how did bring it. We sold 60 shares, and the order called for 110,
and I could not deliver without the balance of the stock coming through.
Relative to the consideration that passed at the time of the issuance of the stock, the
witness Taylor testified:
Q. (by Mr. Heer). Can you state whether or not any consideration passed to you for the
transfer to Mr. Clemons or to the Realty Syndicate, of which you were trustee? A. There was
consideration passed to the Realty Syndicate.
Q. I have reference to the 50 shares only. A. No, no consideration in any way at all.
Q. And by the 50 shares I mean the 50 shares that were transferred by Mr. Overton to
you, that were at the same time transferred by you as trustee to Mr. Clemons? A. No
consideration whatever.
Annexed to the deposition of the witness Taylor are the canceled certificates, representing
the several stock transactions, in which the deceased, Overton, and the appellant, Clemons,
appear on the books of the Oakland Traction Company.
Exhibit No. 1 is certificate No. 949, purporting to have been issued to J. B. Overton, and is
for 50 shares of stock of the Oakland Traction Company.
Exhibit No.2 is certificate No.1386, purporting to have been issued to S. J. Taylor, trustee,
and is for 50 shares of stock of the Oakland Traction Company.
Exhibit No. 3 is certificate No. 1387, purporting to have been issued to J. H. Clemons, and
is for 110 shares of stock of the Oakland Traction Company.
From the testimony of the witness Taylor, as it appears in the record by deposition,
certificates No. 1387, for 110 shares, was issued by him, as secretary, to J. H. Clemons on the
13th day of December, 1907, and the shares represented by that certificate consisted of 50
shares of stock that day transferred from J. B. Overton to J. H. Clemons and 60 shares of
stock that day sold by Oakland Traction Company.
that day transferred from J. B. Overton to J. H. Clemons and 60 shares of stock that day sold
by Oakland Traction Company. There is nothing in the record from which it may be
determined as to who was the purchaser of the additional 60 shares of stock from the Oakland
Traction Company, but in view of the fact that certificate No. 1387, which represented the
shares purchased and the shares transferred from Overton, was made out in favor of J. H.
Clemons, it must be presumed that the latter was the purchaser of the additional 60 shares of
stock. This is especially emphasized by the fact that the deceased, Overton, nowhere appears
in the transaction with reference to the additional 60 shares of stock mentioned by the witness
Taylor.
In his letter to appellant, the deceased, Overton, stated that the stock of the Oakland
Traction Company, referred to in his letter, was purchased with his money. He nowhere gives
expression as to the number of shares of stock to which he referred as having been purchased
with his money. We find nothing in the record upon which the presumption might be based
that Overton, either on the 13th of December, the date on which the transfer took place, or on
any prior or subsequent time, was a party to any transaction involving shares of stock other
than the 50 shares represented by certificate No. 949.
[3] We are unable to determine from the record, as it is before us, how the trial court
arrived at the conclusion that 160 shares of stock should be accounted for by the appellant,
Clemons. The combined number of shares represented by the several certificates, as disclosed
by the record, taken in connection with the testimony of Secretary Taylor, amounts to but 110
shares, and, as we have already stated, we find no fact presented by the record from which
even an inference might have been drawn that any of this stock became subject to trust, if a
trust actually existed, save and except the 50 shares of stock originally represented by
certificate No. 949 and transferred by Overton to appellant, Clemons, on the 13th day of
December, 1907, and included in certificate No. 1387.
A modification of the judgment would be the order of this court were it not for the fact that
the record presents an error which we deem most vital in view of the nature of the judgment
and decree rendered.
[4] A number of assignments of error have been presented to this court by appellant, one
of which charges the trial court with error in refusing to permit the appellant, Clemons, to
testify; the action of the court in that respect being based on section 5419, Revised Laws. In
view of the interpretation given to our statute in the several decisions by this court, the
witness Clemons, appellant herein, was properly precluded from testifying as to matters and
things pertaining to any transactions between himself and the deceased, Overton. (Roney v.
Buckland, 4 Nev. 45; In Re Estate of Millenovich, 5 Nev. 161; Vesey v. Benton, 13 Nev. 284;
Gage v. Phillips, 21 Nev. 150, 26, Pac. 60, 37 Am. St. Rep. 494; Burgess v. Helm, 24 Nev.
242, 51 Pac. 1025; Schwartz v. Stock, 26 Nev. 128, 65 Pac. 351.) In excluding the testimony
of the witness, as to transactions between himself and a deceased person, three elements must
concur and be apparent: First, the witness must belong to a class which the statute renders
incompetent; second, the party against whom the testimony is to be offered must belong to a
class protected by the statute; and, third, the testimony itself must be of a nature forbidden by
the statute. It requires a concurrence of all these elements to preclude the witness from giving
his testimony. (40 Cyc. p. 2263, and cases there cited.) This being true, the inquiry is in the
case at bar: Was the witness Clemons precluded from testifying as to all matters referred to in
the offer?
[5] However strictly the statute may operate in excluding witnesses from testifying with
reference to transactions between themselves and deceased persons, it was not in our
judgement intended to preclude a witness from testifying as to matters or things brought forth
by opposing witnesses, which appear to be outside of the transaction and out of the presence
and hearing of the deceased party. (40 Cyc. p. 2323.) If the offer made by the appellant in
this case had included such matters, it would have been error to exclude the testimony of
appellant with reference thereto.
made by the appellant in this case had included such matters, it would have been error to
exclude the testimony of appellant with reference thereto. It is our judgment, in view of the
form of the offer and the substance of the same, the witness Clemons in this case was
properly precluded from testifying.
[6] It is contended by appellant that the court erred in fixing the value of the stock, as it
did, at $90 per share. The only testimony appearing in the record, bearing upon the subject of
the value of the converted stock, was that of the witness Taylor, secretary of the Oakland
Traction Company, and in that respect he testified as follows:
Q. Do you know the present market value of the preferred stock of the traction company?
A. I think you can buy plenty of it for $92.50 a share at the present timenot plenty of it, but
you can buy it at that price.
Q. that is sort of negative testimony as to the value of it. Do you know the market value at
the present time? A. I only know that I had to buy some for a friend of mine the other day,
and I paid $92.50 a share for it.
The testimony referred to was objected to by counsel for appellant, and several grounds of
objection specifically set forth and exception duly reserved. No other evidence was offered
bearing upon this subject, and we are unable to determine, from the record before us, how the
trial court fixed the value of the stock at $90 per share.
In the case of Robinson M. Co. v. Riepe, 37 Nev. 33, 138 Pac. 910, following former
decisions of this court, we said: This point has been settled by this court, and the rule
established, that in cases of this character the damages which necessarily follow from the
wrongful act of conversion are the value of the property at the time of conversion with legal
interest from conversion to judgment. (Boyland v. Huguet, 8 Nev. 345; Ward v. Carson R.
Wood Co., 13 Nev. 44.)
In our judgment the objection to the interrogatories propounded, in response to which
interrogatories the witness Taylor gave the answers as to the value of the shares at or
about the date of his deposition, should have been sustained, inasmuch as the
interrogatories propounded called for an answer fixing the value of the shares at the time
of the taking of the deposition.
propounded, in response to which interrogatories the witness Taylor gave the answers as to
the value of the shares at or about the date of his deposition, should have been sustained,
inasmuch as the interrogatories propounded called for an answer fixing the value of the shares
at the time of the taking of the deposition.
The value of the stock at the time of the conversion was the fact material to the issue. The
time of conversion, if conversion took place at all, was more than two years prior to the date
on which the witness Taylor fixed the value of the stock. So far as the record discloses, there
was no fact established by the evidence produced in the case upon which the court could
determine the value of the stock at the date of the conversion, and hence no fact was
established upon which the court could be warranted in making the finding which it did make
with reference to the value of the shares of stock affected by the trust. This was a vital
element in the case inasmuch as it was made an issue by the pleadings.
There being no fact presented by the record in this case as it is before us from which the
trial court could be warranted in entering the judgment and decree as it was entered either as
to the number of shares of stock affected by the trust or as to the value of the stock at the time
of the conversion it necessarily follows that the judgment must be reversed.
The judgment and order appealed from are reversed and the case remanded for a new trial.
Per Curiam:
Rehearing denied.
____________
37 Nev. 486, 486 (1914) Zetler v. Tonopah & Goldfield Railroad Co.
[No. 1889]
ANTONE ZETLER, Respondent, v. TONOPAH AND GOLDFIELD RAILROAD
COMPANY, Appellant.
[143 Pac. 119]
1. CarriersTransportation of BaggageLimit of Liability.
A carrier, by reasonable regulations brought to the knowledge of a passenger, may limit its liability as
an insurer for the transportation of baggage to a specified value, except when paid additional
compensation proportional to the risk, and $100 is a reasonable amount in value above which an
additional charge may be made.
2. CarriersTransportation of BaggageLimited LiabilityNegligent Loss.
A stipulation limiting a carrier's liability for loss of baggage to $100, in the absence of payment of an
excess charge for additional valuation, is unavailable,where the carrier has willfully taken or withheld the
baggage from the passenger, or has negligently delivered it to the wrong person.
Appeal from the Seventh Judicial District Court, Esmeralda County; Peter J. Somers,
Judge.
On rehearing. Affirmed.
Campbell, Metson & Brown, Walter Shelton, and Huger Wilkinson, for Appellant.
James Donovan, for Respondent.
[1] After more mature deliberation, we see no reason for changing the conclusion reached
in the former opinion (35 Nev. 384, 129 Pac. 299). It may be conceded that carriers of
passengers, by reasonable regulations brought to the knowledge of the passenger, may be
protected against liability as insurers for baggage, exceeding a specified value, except when
paid additional compensation proportional to the risk, and that $100 is a reasonable amount in
value above which an additional charge may be made.
[2] Nevertheless, if such a stipulation is made or accepted by the passenger, the
company should not be allowed to enforce it, if it has willfully taken or withheld the
baggage, or against such a negligent act as the delivery of the trunk to a person not
entitled to receive it because not having the check.
37 Nev. 486, 487 (1914) Zetler v. Tonopah & Goldfield Railroad Co.
accepted by the passenger, the company should not be allowed to enforce it, if it has willfully
taken or withheld the baggage, or against such a negligent act as the delivery of the trunk to a
person not entitled to receive it because not having the check.
The judgment of the district court will stand affirmed.
I dissent upon the grounds stated in my former dissenting opinion (35 Nev. 385, 129 Pac.
299). Since the former decision in this case, the Supreme Court of the United States has
rendered a number of decisions which, in my opinion, confirm the views heretofore expressed
that respondent is bound by the agreed maximum value of the baggage expressed in the ticket
contract, signed by respondent; the transportation company having made provision for
transporting baggage of a higher value, upon payment of an additional consideration
proportionate to value.
The recent authorities, as well as many former decisions, are cited in the case of Boston &
Maine R. R. v. Hooker, 233 U. S. 97, 34 Sup. 526, decided April 6, 1914.
We are bound, I think, also to consider that this case involves an interstate transaction, and
the federal authorities, in my judgment, are in point and controlling upon this court.
____________
[No. 2147]
STATE OF NEVADA, Ex Rel. H. B. MAXSON, Petitioner, v. GEORGE BRODIGAN, as
Secretary of State of the State of Nevada, and RICHARD A. McKAY, Respondents.
[143 Pac. 306]
1. ElectionsPrimary ElectionExpensesAccountDuty to
FileStatutesCandidate.
Primary election law (Stats. 1913, c. 282), sec. 8, provides that every candidate for nomination or
election to a state office shall, five days before and fifteen days after the election at which he was a
candidate, file with the secretary of state a sworn statement setting forth all the moneys contributed by
him to aid his nomination or election. Late in the last day for filing nomination papers M. and G. each
filed his nomination paper for the Republican nomination for attorney-general and paid the filing fee. On
the second day thereafter G. filed with the secretary of state his purported withdrawal from the
nomination. About half an hour later M. filed his purported withdrawal, which it was held could not be
accepted, because on G.'s withdrawal M. Became the Republican nominee by operation of law. Held that,
under such circumstances, M. was not a candidate for the nomination for the office at a primary election,
and his failure to file a statement of his primary election expenses was no objection to his right to have
his name printed on the ballot.
2. PenaltiesForfeitures.
Penalties and forfeitures are not favored, and will not be imposed unless the statute so clearly directs.
Original Proceeding. Petition by the State, on relation of H. B. Maxson, for a writ of
prohibition against George Brodigan, Secretary of State, and Richard A. McKay. Writ
denied.
Cole L. Harwood and H. V. Morehouse, for Petitioner.
Geo. B. Thatcher, Attorney-General, and Prince A. Hawkins, for Respondent Brodigan.
Richard A. McKay, in pro. per.
Relator asks for a writ of prohibition restraining the secretary of state from certifying or
causing to be placed or printed the name of respondent McKay upon the official ballot as the
nominee of the Republican party for attorney-general at the ensuing election to be held on
November 3, because of his failure to file a statement of his campaign expenses under the
law relating to the purity of elections passed at the last session of the legislature.
attorney-general at the ensuing election to be held on November 3, because of his failure to
file a statement of his campaign expenses under the law relating to the purity of elections
passed at the last session of the legislature.
Late in the day or night of Saturday, August 1, 1914, which was the last day for filing
nomination papers, McKay and Raymond A. Gott each filed his nomination paper for the
Republican nomination for the office of attorney-general, and paid the filing fee of$100. On
the following Monday, August 3, Gott filed with the secretary of state his purported
withdrawal from the nomination, and about half an hour later McKay filed with the secretary
of state his purported withdrawal from the nomination. Acting pursuant to the order of this
court, the secretary of state, on August 9, accepted the withdrawal of Gott, and refused to
accept the purported withdrawal of McKay.
In our decision in the proceeding which resulted in that order, we said:
In the case at bar, as we view it, there was nothing in the law which would prevent the
first party applying to withdraw from having his application complied with. In other words,
Raymond A. Gott, having applied to the secretary of state to have his name withdrawn, could,
in our judgment, properly have that request complied with. As soon, however, as his name
was withdrawn, the other party to the contest for Republican nominationnamely, Richard
A. McKaybecame, by operation of the law (subdivision 9, c. 14), the party nominee for the
office of attorney-general, and, having become the party nominee, under the statute, and
under the rule as laid down by this court in the case of Donnelly v. Hamilton, 33 Nev. 418,
111 Pac. 1026, he could not withdraw. (State, ex rel. Thatcher, v. Brodigan, 37 Nev. 458,
142 Pac. 522.)
Upon the argument yesterday afternoon a number of questions were presented, of which it
is necessary to determine only the one, as to whether McKay was required to file a statement
five days before and fifteen days after the primary election.
the primary election. He has appeared and asserted before this court that, acting in good faith,
he failed to file a statement of campaign expenses incurred by him because, under his belief,
no such statement was required by the law. Section 8 provides:
Every candidate for nomination or election to public office, including candidates for the
office of senator of the United States, and representatives in Congress, shall, five days before
and fifteen days after the election at which he was a candidate, file with the secretary of state,
if a candidate for senator of the United States, representative in Congress, or for any state or
district office in a district composed of one or more counties, and with the county clerk, if a
candidate for state senator, or assemblyman, or for county and precinct offices, and with the
city clerk if for a city office, an itemized sworn statement setting forth in detail all the
moneys, or other valuable thing contributed, expended or promised by him to aid and
promote his nomination or election, or both, as the case may be.
Section 35 provides:
The name of a candidate chosen at a primary nominating election or otherwise, shall not
be printed on the official ballot for the ensuing election unless there has been filed by or on
behalf of said candidate the statements of accounts and expenses relating to nominations
required by this act.
Under the well-settled rule that penalties and forfeitures are not favored unless clearly
expressed, it is apparent that he should not be deprived of his nomination or that his name
should not be withheld from the ballot unless the statute clearly directs that such should be
the result. At least from the time that Gott and McKay filed their nomination papers, on
August 1, to the time Gott withdrew, they were both candidates for the nomination, but upon
the withdrawal of Gott, under the statute and the decision of this court, McKay became the
Republican nominee to be placed on the ballot for the general election. As such nominee,
with no one opposing him, he was not a candidate for the nomination at the primary
election, after the withdrawal of Gott.
was not a candidate for the nomination at the primary election, after the withdrawal of Gott.
Consequently, McKay was not a candidate for the nomination at the time the names of
candidates for the nomination were certified and printed on the primary election ballot, and
his name did not appear thereon. He was not a candidate for the nomination at the time of the
primary election, nor five days before nor fifteen days after such election. Therefore we
conclude that, under the language of the statute providing that every candidate for
nomination or election to public office * * * shall, five days before and fifteen days after the
election at which he is a candidate, file a statement, McKay, not being a candidate for the
nomination at those times, and having no contest or interest in the primary election, was not
required to file a statement, either five days before or fifteen days after the primary election.
While not a candidate for nomination at those times, if it be conceded that he will be
required to file a statement five days before and fifteen days after the general election at
which he is a candidate, it does not follow that he is required to file such statement five days
before or fifteen days after the primary election, when at the times required for filing
statements before and after the primary election by candidates for the nomination at the
primary election he was not a candidate for the nomination.
Norcross, J.: concurring:
I concur in the order and in the construction placed by the chief justice on sections 8 and
35 of chapter 282 of the Statutes of 1913.
____________
[No. 2136]
STATE OF NEVADA, Ex Rel. ARTIE B. RIGGLE, Relator, v. GEORGE BRODIGAN, as
Secretary of State of the State of Nevada, Respondent.
[143 Pac. 238]
1. Constitutional LawPresumption as to Validity of Statutes.
All acts of the legislature are presumed to be valid until it is clearly shown that they are
unconstitutional.
2. ElectionsFiling FeeValidity.
Stats. 1913, c. 284, subc. 3, sec. 9, imposing upon candidates for state offices a fee of $100 as a
condition to filing nomination papers so that their names will go on the ballot, is valid, being a regulation,
and not an additional qualification, and it being within the scope of the legislature's power to impose a
substantial fee to prevent persons from placing their names on the ballots for fraudulent purposes, such as
to draw strength in small localities from one candidate to benefit another.
Original Proceeding. Application by the State of Nevada, on relation of Artie B. Riggle,
for a writ of mandamus against George Brodigan, Secretary of State. Writ denied.
A. Grant Miller and James M. Frame, for Relator.
Geo. B. Thatcher, Attorney-General, for Respondent.
The relator applies to this court for a writ of mandate to compel the respondent, the
secretary of state, to file a verified nomination paper of relator as a candidate for the office of
secretary of state. Respondent refused to file this paper, because the relator declined and
failed to pay the fee of $100 provided by the statute as a condition for such filing. (Stats.
1913, p. 514.) It is shown, and not denied, that the relator is a citizen of the United States and
a fully qualified elector of the State of Nevada, and that he possesses all the constitutional
qualifications for the office for which he seeks the Socialist party nomination. He alleges that
he is working for wages, and has not the sum of $100 with which to pay the filing fee, and
that he has no means or resources that would enable him to raise the amount required.
that he has no means or resources that would enable him to raise the amount required.
On behalf of the relator it is contended that the provision of the primary election law
imposing a filing fee is unconstitutional, because it adds a money qualification a condition
precedent to becoming a candidate for public office; that the legislature was without power to
impose more than a nominal filing fee; and that, even if the legislature had power to impose
more than a nominal fee, the one prescribed is so unreasonable as to render the provision
imposing it void.
In the courts which have considered this question two different views have been held. A
part of these courts have taken the view that the legislature is without power to impose a fee
for filing nomination papers greater than may be a reasonable fee for the service of the officer
filing the petition. (State v. Drexel, 105 N. W. 174,74 Neb. 776; Ballinger v. McLaughlin, 22
S. D. 206, 116 N. W. 70; Johnson v. Grand Forks, 16 N. D. 363, 113 N. W. 1071, 125 Am.
St. Rep. 662; People v. Election Commissioners, 221 Ill. 9, 77 N. E. 321, 5 Ann. Cas. 562.)
Cases holding that more than a nominal fee may be required are: Socialist Party v. Uhl, 155
Cal. 776, 103 Pac. 181; State v. Nichols, 50 Wash. 508, 97 Pac. 728; State v. Scott, 99 Minn.
145, 108 N. W. 828; Kenneweg v. Commissioners, 102 Md. 119, 62 Atl. 249.
This tribunal is already aligned with the courts which have sustained legislative acts
requiring more than nominal fees from candidates for nomination for public office. In Riter v.
Douglass, 32 Nev. 437, 109 Pac. 444, we held that the statute of 1909 requiring the payment
of a fee of $50 by a candidate for the party nomination for a state office, and the obtaining
and filing by him of a petition signed by a percentage of the voters, was not unreasonable.
There was complaint and difficulty regarding the obtaining of these petitions by candidates,
and after the rendition of that decision the legislature changed the law to provide for a fee of
$100, and omitted the requirement for the petition.
requirement for the petition. If the trouble and expense of obtaining a petition signed by 3 per
cent of the voters of the state be considered an exaction of as much or more from the
candidate as the payment of $50, which was added to the original $50 fee in lieu of the
petition signed by a percentage of the voters, there is no good reason why the $100 fee may
not be required, if the decision in the Riter-Douglass case was correct.
Under the original primary law as sustained by that decision, each signer of a nomination
paper was required to verify the same before some officer authorized to administer oaths, or
before a special verification deputy, and the regular fees for notaries public for these
verifications by 3 per cent of the voters of some of the political parties would exceed the $50
added to the fee by the law under the amendment as it now stands. Consequently the former
decision of this court sustained the act of the legislature under which, if as much was paid for
these verifications as the statutory notarial fees therefor, the nomination of a candidate of the
larger political parties, with the former $50 filing fee, would have amounted to more than the
$100 now exacted, besides the trouble of obtaining the petition, which is no longer required.
The cases in other states in which the question has been determined are about equally
divided, and should this court reverse it unanimous decision in the Riter-Douglass case,
holding such a law to be constitutional? After we have said that the requirement of such fee,
petitions, and signatures were not unreasonable or unconstitutional, and the legislature
amended the law so as to require an additional $50 to be paid in the fee, but relieved the
candidate from the necessity of obtaining the petition, signatures, and verifications, it appears
that the decision in the Riter-Douglass case fully justified the legislature in amending the law,
and that for this court to now hold that the law as amended is unconstitutional would be
equivalent to leading the legislature into amending the law and then determining that such
law is unconstitutional.
[2-3] The decisions are numerous holding that all acts of the legislature are presumed to
be valid until it is clearly shown that they are unconstitutional.
of the legislature are presumed to be valid until it is clearly shown that they are
unconstitutional. If the exaction of a fee of $50, as previously held by this court, did not
render the law invalid, we are unable to see how the requirement of $50 additional fee would
make the law unconstitutional. If personally we believe that the fee of $50 was high enough,
and that at the most it should not exceed $100, we do not wish to set aside the judgment of
the two houses of the legislature and the governor in passing and approving the law fixing the
fee at $100 and eliminating the requirement for the petition and verifications, and thereby, in
effect, reverse the principle sustained by our decision in the Riter-Douglass case, and order
the respondent to file a nomination paper without the payment of any fee.
Although a candidate for a state office may be without funds with which to pay a fee of
$100, or $10, or even a nominal fee, in view of the importance of state offices and the proper
qualifications for filling them, and the liberal salaries paid, which are usually from a few to
several thousands of dollars a year, we do not think that under the conditions now and
heretofore prevailing a fee of $100 can be considered so unreasonable or arbitrary as to make
the law invalid or as imposed for purposes other than regulation. Political conventions have
sometimes exacted as large a fee from a candidate seeking a nomination before the
convention, and some of the political parties have made it a rule in this state for more than a
generation to levy assessments on candidates many times in excess of the fee exacted by the
statute.
The Supreme Court of California sustained the requirement for the payment of a fee of
$50, and the Supreme Court of Washington for a fee equivalent to 1 per cent of one year's
salary, on which basis a filing fee for some offices in this state would amount to $60 or $70.
The fee should not be so high as to prevent any elector from running for office who is
competent and worthy, and who has a fair chance of being elected, or for whom any
considerable proportion of the voters might desire to cast their ballots. Certainly a fee of $100
is fully as much as should be required from a candidate for any office;
should be required from a candidate for any office; but in view of the opinion in the
Riter-Douglass case, which gave no intimation to the legislature that a fee of more than $50,
in addition to the petition, might not be required, and of the decisions of other courts which
have held that more than a nominal fee may be required, and considering the amount usually
paid by candidates for campaign expenses and as party assessments in this state, and the
liberal salaries paid to public officers, we are not prepared to say that the $100 designed in the
statute is so excessive that it may not be collected. To hold otherwise might allow candidates
for state offices to file their own nomination paper, and have others file in their interest,
without paying any fee.
It is within the province of the legislature to consider whether, if only a nominal fee were
required, the ballot might, in certain instances, be incumbered by the names of many
candidates without chance of election, who, without exception that they would be elected,
might, in the interest of another candidate, run in certain localities where the opposing
candidate is popular for the purpose of dividing his vote, and to exact a reasonable fee for the
purpose of preventing, at least in some degree, such a result. The statute does not require any
fee to be paid by a candidate for regent of the state university, an important office which
carries no salary.
Under our former decision the people's representatives in the lawmaking body assembled
have the right to make any reasonable regulations regarding elections and to fix any fee which
is not unreasonable. It necessarily follows that they have considerable discretion, and the
court should not be overstrict in order to set aside the statute which they have deliberately
enacted. It may happen that a worthy candidate for an important state office does not possess
$100, or any considerable part of that amount, but it may be assumed that, if there is much
demand that he run for office, his friends or the people desiring that he become a candidate
will arrange for the payment of the fee.
fee. In State v. Nichols, 50 Wash. 508, 97 Pac. 728, the right to exact a reasonable fee for the
privilege of running for office was sustained, and the statute which exacted 1 per cent of the
salary was upheld. The court said:
The state but asks the candidate for office under a particular law to reimburse it for a part
of the expenses it incurs in carrying that law into effect. This clearly the state may lawfully
do.
The candidates concerned in this case are seeking to appear as party candidates on the
ticket for the general election. As the constitution does not state that any rights are guaranteed
to any political party, it may be questioned whether the legislature may not entirely prohibit
candidates for office from appearing under any party designation on the ticket at the general
election, the same as is required in some states for candidates for judicial offices, and
consequently exact fees so large as to be partly or wholly prohibitive. If it be conceded that
the courts should be kept out of politics, and candidates for judicial positions not allowed
under party designations, may not the state, acting through its legislature, prohibit any
candidate from running as a Democrat, Republican, Progressive, or Socialist, or under any
party designation, even if it be granted that any citizen has the constitutional right to run for
any office as an independent or simply as a candidate without the payment of any fee? In
what way can it be said that the constitution requires the legislature to enact laws in the
interest of any party, or to allow any elector to run for public office under any party
designation?
McCarran, J.: concurring:
I concur in the opinion written by Chief Justice Talbot. The fee required by the act of 1913
is imposed by way of regulation, and not as an additional qualification. (Socialist Party v.
Uhl, 155 Cal. 776, 103 Pac. 181.)
Under the former law, unanimously sustained by this court in the case of Riter v. Douglass,
supra, a fee of $50 was required, and, in addition, a petition signed by 3 per cent of the voters
of the state. These conditions were undoubtedly imposed by way of regulation and in order to
prevent promiscuous filing of nomination papers. The legislature having before it the
experience of its members as well as the experience of state and county officials elected under
the former law unquestionably yielded to a popular demand for a change in the regulations,
and with that in view the subsequent act was passed, which act did away with the requirement
of petitions signed by any percentage of the voters, and in place of such petition a filing fee of
$100 was imposed. By this act the legislature did away with the burdensome expense
imposed on candidates in circulating petitions, as well as the annoyance attendant thereon.
The legislature is the lawmaking body. It speaks for the policy of the people of the state,
and its functions should not be assumed by the courts. That branch of the government having
as its office the making of the law must be accredited with having a conception of what is
reasonable and what is an unreasonable regulation, and, unless unreasonableness is apparent
and manifest, the court should not discredit its judgment or assume its functions, nor should it
set itself up as being possessed or more immaculate judgment as to the reasonableness or
unreasonableness of the regulation than the people whose representatives create legislative
acts.
I am unable to concur in the views expressed by my learned associates for the following
reasons: The relator has the constitutional qualifications for the office for which he seeks a
party nomination; the majority of the courts that have considered the question hold that the
legislature is without power to impose upon candidates for a party primary nomination more
than a nominal filing fee covering the expense of the services of the filing officer;
filing officer; those courts which hold that more than a nominal fee may be imposed, as a
matter of regulation, limit such fee to a reasonable one, such as is not so large as to impose a
hardship upon any person for whom there may be any considerable desire to vote at a
nominating election, and yet enough to prevent a wholesale filing of petitions by persons
regardless of whether or not they are desirable candidates; that a filing fee as high as $100 has
never by any court been sustained as reasonable, but, upon the contrary, a fee in so large an
amount has been both expressly and impliedly held to be unreasonable; that the change made
by the statute of 1913, imposing the same fee for filing independent petitions as for filing
primary nomination papers and forbidding the use in such petitions of the name of a prior
existing party, cuts off the right which formerly existed to so secure a place upon the ballot
with the use of a party designation, thus limiting the right to the use of a party designation in
any form to nominations obtained through primary elections; that to so cut off the right to
obtain a place upon the official ballot with the use of a party designation by petition of
electors renders any fee imposed for filing primary nomination papers subject to a more rigid
test as to reasonableness than might otherwise be the case.
In Riter v. Douglass, 32 Nev. 400, 109 Pac. 444, we sustained the view that the legislature
could impose a reasonable filing fee for primary nomination papers. The question presented
in that case was not as to whether the fee of $50, imposed by the statute of 1909, was
reasonable or unreasonable, but as to the power of the legislature to impose any fee at all. The
same situation was presented in the California and Washington cases, cited in support of the
rule that the legislature could impose reasonable filing fees in excess of a mere nominal fee.
The question of the reasonableness of a filing fee was directly presented in the case of
State v. Scott, 99 Minn. 145, 108 N. W. 828, which may be regarded as the leading case
supporting the rule that a reasonable fee may be imposed. This was a proceeding in
mandamus to compel the filing, without payment of the fee prescribed therefor, of
relator's affidavit of candidacy for nomination as a member of the Prohibition party for
the legislature.
the filing, without payment of the fee prescribed therefor, of relator's affidavit of candidacy
for nomination as a member of the Prohibition party for the legislature. The Minnesota statute
prescribed a filing fee of $20 in the case of state candidates and $10 in other cases. The court,
among other things, said:
The amount should be fixed at a point which would not impose a hardship upon any
person for whom there may be any considerable desire to vote at a nominating election, and
yet enough to prevent a wholesale filing of petitions, for nominations by any one, regardless
of whether or not they are desirable candidates. * * * When all these considerations are taken
into account, we are of the opinion that the sum of $10 is not so large but that any person who
may be called upon to stand as a candidate for public office can obtain the amount without
hardship. * * * The law very wisely assumes that any candidate who is proper material to
stand as such before the people for any public office requiring a fee of $10 or $20 will find no
difficulty in raising the amount.
Referring to the provisions of the Illinois and Nebraska statutes, held to be
unconstitutional in the cases of People v. Election Commissioners, 221 Ill. 9, 77 N. E. 321, 5
Ann. Cas. 562, and in State v. Drexel, 74 Neb.776, 105 N. W. 174, the Minnesota court
further said: We need not deny that both acts were arbitrary and unreasonable in the exaction
of fees.
The highest fee prescribed under the Illinois statute was $100, the same as is involved
here. The statute was assailed as unconstitutional by representatives of the Socialist party.
The Illinois court, in the Election Commissioners' case, supra, said:
These payments bear no relation to the services rendered in filing the papers or the
expenses of the election. They are purely arbitrary exactions of money, to be paid into the
public treasuries as a monetary consideration for being permitted to be a candidate. The
payments are not intended as compensation for services rendered in filing the papers, but the
provisions make the ability and inclination of a person to pay money a test of his
qualification and of the right of the voters to choose him for public office.
the ability and inclination of a person to pay money a test of his qualification and of the right
of the voters to choose him for public office. Every eligible person has a right to be a
candidate for a public office without being subject to arbitrary or unreasonable burdens. The
voters have a right to choose any eligible person, and he owes a duty to the public to qualify
and serve.
The North Dakota court, in Johnson v. Grand Forks County, 16 N. D. 363, 113 N. W.
1071, 125 Am. St. Rep. 662, in holding void a statute imposing a fee of 2 per cent of the
annual salary of the office for which primary nomination was sought, said: If the fee as fixed
is to stand, the practical working of the law is to discourage and possibly eliminate all party
effort, except on the part of the majority party.
In Ballinger v. McLaughlin, 22 S. D. 206, 116 N. W. 70, the South Dakota court,
considering a similar question, said: If, in connection with the filing of nominating petitions,
the legislature has power to impose, as a condition precedent, the payment of any sum in
excess of a uniform nominal filing fee, it is difficult to understand how the courts could
formulate a rule of general application by which they shall be guided in determining when the
required amount is excessive and when it is not.
Considering a statute imposing a fee of 1 per cent of the emoluments of the office, the
Nebraska court, in State v. Drexel, supra, said: Can a test of ability to pay fees of the
magnitude mentioned be made as to one's right to be voted for at a primary election? It is, at
first glance, apparent that these enormous fees prevent many from becoming candidates for
party recognition who otherwise would be willing to yield to a public demand that they
become candidates for nomination for a public office. * * * The charges are arbitrary and
unreasonable. They make the pecuniary ability of a person to pay the same a test as to his
qualification to become a candidate for a party nomination. * * * The right to freely choose
candidates for public offices is as valuable as the right to vote for them after they are chosen.
See, also, Ledgerwood v. Pitts, 122 Tenn. 570, 125 S. W. 1036.
In Riter v. Douglass, supra, this court held that, under the primary election law of 1909;
If candidates or political parties do not wish to avail themselves of the privilege accorded
them of securing their nominations as now provided by the primary law, or by reason of not
being able to qualify with the legislative requirements imposed, they still have the
constitutional privilege of running independently.
It is now provided by section 3 of chapter 5 of the statute of 1913 that candidates seeking a
place on the general election ballot by petition of electors cannot use the name of a political
party existing at the last preceding general election, and section 7 of the same chapter
imposed the same fees as for a primary nomination. In these two respects a radical change
was made from the prior existing law.
Even if it were conceded to be manifest that the legislature has no power to impose such
fees on candidates by petition of electors, nevertheless relator is now debarred from using his
party designation as he formerly could by having his name appear upon the official ballot as
Electors Socialist, Independent Socialist, or some similar designation. It thus appears that
relator cannot have his name upon either ballot with the use of his party designation except by
the payment of the fee prescribed for filing his primary nomination paper.
The courts which have adopted the rule that a reasonable fee, in excess of a mere nominal
fee covering the expense of the mere filing of papers, have, necessarily, imposed upon
themselves the burden, of doubtful propriety, of supervising the discretion of the legislature.
When the courts hold that the legislature has power to impose a reasonable fee, they
necessarily say that the legislature may not impose an unreasonable or capricious fee.
Suppose, for example, the legislature should impose a fee of $500 or $1,000 for filing a
nomination paper. A court would have no difficulty in declaring such fees so exorbitant as
virtually to deprive the great body of electors of becoming aspirants for public office.
such fees so exorbitant as virtually to deprive the great body of electors of becoming aspirants
for public office. The difficulty in enforcing the rule of reasonable fees is in drawing the line
between what is reasonable and what is unreasonable. The right of an elector to become a
candidate for a public office being guaranteed by the constitution, such right cannot be
destroyed under guise of regulation. Government cannot exist without office-holders who
voluntarily seek public office; hence the public at large is more interested than is the
individual in requiring that unreasonable conditions be not imposed on citizens who may
become candidates.
From the admitted facts in this case a number of electors who are desirous of becoming
candidates for party nomination for several state offices may not become such party
candidates if such a fee may lawfully be exacted, and in the case of the relator it is an
admitted fact that he cannot pay the required filing fee because of pecuniary inability to do so.
It is asserted by counsel for petitioner, and not controverted, that these several candidates
have been, by some form of referendum, already approved as the desired candidates of a
political party which in the last election, we judicially know, polled more than 15 per cent of
the entire vote of the state, and that, if their nomination papers cannot be filed, such party will
be without candidates for such offices. A fee that is so large as to tend to prevent minority
parties from having representation upon the official ballot can scarcely be said to be
reasonable. Constitutions are largely designed to protect the individual or the minority against
the unlawful encroachments of majorities. Minority parties have rights and play a part in the
scheme of government scarcely less important than that of majority parties. Parties are the
practical means through which the great body of electors express their voice in the policies
that should control in the matter of government and the means by which existing policies may
be changed when a majority of electors so decree. The majority party of today may be the
minority party of tomorrow, and vice versa.
versa. This is illustrated in our own state when in the election of 1892 the two present leading
parties in the state cast a combined vote only about equal to the vote of relator's party in the
last election. It is no answer to say that the constitution itself does not recognize party
organizations. Electors have the constitutional right to organize into political parties, and the
legislature has recognized the fact of parties by providing a method by which party electors
may be nominated for public office. It is a condition, and not a theory, that the great
majority of electors seek public office through party nominations. Unreasonable conditions
cannot be sanctioned in the matter of an elector exercising his constitutional right to seek
public office as the representative of a political party. A fee of $100 is a considerable burden
upon the ordinary citizen. It is equal to the amount of ordinary taxes for state and county
purposes on a property value of $3,000 or $4,000. It is, in effect, a heavy tax upon the
individual willing to serve the state in public office.
Conceding that in the Riter case we held that a $50 fee was reasonable, it does not follow
that when the legislature doubled the amount of that fee it did not exceed the bounds of
reasonableness, especially so when it deprived an elector of the right, by petition of electors,
of securing a place on the official ballot with the use of a prior existing party designation in
any form. The decision in the Riter case should not, in my judgment, be considered
conclusive of any of the questions involved in this case, even though we conclude to adhere
to the rule that reasonable filing fees, as a matter of regulation, may be imposed. It was
unnecessary to consider the question at all in that case, and it was not given that careful
consideration, either by court or counsel, that would have been given had the question been
essential to a determination of the main question involved. This is shown by the fact that a
number of the existing cases bearing on the question were not cited to the court. The
contention made on behalf of the respondent in the Riter case that the courts which had
considered the question had very generally sustained provisions of statutes imposing fees
in excess of a nominal amount, as a matter of regulation, was erroneously accepted.
very generally sustained provisions of statutes imposing fees in excess of a nominal amount,
as a matter of regulation, was erroneously accepted. The fact is that at the time the Riter case
was decided the Supreme Courts of Illinois, Nebraska, Tennessee, North Dakota, and South
Dakota, a majority of the courts that had considered the question, had held directly to the
contrary.
As said by the South Dakota court, in Ballinger v. McLaughlin, supra: It is difficult to
understand how the courts could formulate a rule of general application by which they shall
be guided in determining when the required amount is excessive and when it is not.
In Socialist Party v. Uhl, supra, the California court said: The exaction of a fee tends to
prevent an indiscriminate scramble for office, where it is fixed at an amount that will impose
no hardship upon any person for whom there should be any desire to vote as a nominee for
any office, and yet enough to prevent the wholesale filing of petitions for nominations of
anyone, regardless of whether or not he is a desirable candidate.
If it be a proper rule to apply that the fee may be fixed at such an amount as, while not
imposing a hardship upon any person for whom there should be any desire to vote as a
nominee for any office, and yet enough to prevent a wholesale filing of petitions, then the
fee of $100 may, I think, be said to be unreasonable, as shown by past experience. The fee of
$50 prescribed by the statute of 1909 appears to have been large enough to have prevented a
wholesome filing of petitions for the primary election of 1910. If a $50 fee was sufficient to
accomplish this result, what justification can be found for doubling the amount of the fee?
It is said that the statute of 1909, also, required, in addition to the fee, a petition of 3 per
cent of the party vote; that this entailed an additional expense and effort, which, when
removed, justified the increase of the amount of the filing fee. I cannot agree with this view.
It may readily be conceded that many candidates might prefer to pay the additional fee rather
than to bother with securing a petition, and it may be true that some candidates would spend
more to secure a petition, in some cases much larger than the law required, than the
increase in the fee amounted to; nevertheless it is not true that the securing of a petition
necessarily involved more than a nominal expense.
would spend more to secure a petition, in some cases much larger than the law required, than
the increase in the fee amounted to; nevertheless it is not true that the securing of a petition
necessarily involved more than a nominal expense.
The constitutional right of a qualified elector to become a candidate for public office is
scarcely less important than his right to vote at an election. This court has repeatedly held that
the legislature is without power to infringe the constitutional right of an elector to vote.
(Davis v. McKeeby, 5 Nev. 369; State v. Findlay, 20 Nev. 198, 19 Pac. 241, 19 Am. St. Rep.
346; State v. Board of Examiners, 21 Nev. 67, 24 Pac. 614, 9 L. R. A. 385.)
The writ should issue as prayed for.
____________
37 Nev. 507, 507 (1914) Memorial to William A. Massey
PROCEEDINGS
IN THE
SUPREME COURT OF THE STATE OF NEVADA
____________
Monday, April 6, 1914
PresentHon. G. F. Talbot, Chief Justice,
Hon. F. H. Norcross,
}Associate Justices,
Hon. P. A. McCarran,
and Officers of the Court.
The committee heretofore appointed to draft appropriate resolutions expressing the sorrow
of the Court and Bar due to the death of Honorable William A. Massey, formerly a Chief
Justice of this Court, presented the following memorial:
WILLIAM A. MASSEY
To the Honorable the Supreme Court of the State of Nevada:
Your committee, appointed to prepare a memorial of the alte Judge William a. Massey,
who died en route to Susanville, California, on the 5th day of March, 1914, respectfully
reports as follows:
When death claimed William A. Massey, its toll was Nevada's most distinguished citizen,
and it is but fitting that his associates in the legal profession, those who knew him at his best,
should pay their highest tribute to his memory and exalted character.
Judge William A. Massey was born in the State of Ohio, on the 7th day of October, 1856,
and died in the midst of his activities, while on his way to engage in the trial of a case. The
fifty-seven years of his busy and fruitful life were filled with acts, deeds, and
accomplishments that called for the exercise and possession of every quality and attribute of
mind and heart that men admire and value most.
Judge Massey was of Irish extraction, his grandfather having come from Ireland to the
State of New York, whence he journeyed to Ohio, where his son, William, a distinguished
Civil War veteran, the father of Judge Massey, was born.
Later, his parents moved to Illinois, where Judge Massey's first years were passed, and
where he received his early education. His later education was had at U. C. College, Indiana,
and Asbury College, which later became Depauw University, situated at Greencastle, Indiana.
In 1877 he was admitted to the bar of the State of Indiana, and in 1893, he became a member
of the Nevada bar.
From the date of his admission until his death, his ability and high character commanded
the esteem and confidence of all who knew him, and identified him with the most important
litigation and legal business of the period, and brought to him as well in his election as a
Justice of the Supreme Court of the State of Nevada, in 1896, the highest honor that a people
can confer.
In 1879, Judge Massey journeyed from Sullivan, Indiana, to San Diego, California, but
after a year there, he came to Nevada, and settled at Tuscarora, in Elko County, then at its
height as a mining camp. Judge Massey remained there for about twelve years, engaged in
mining, and in the practice of law, as well. These years were trying ones, and called for the
exercise of tenacity of purpose, resourcefulness in adversity, fidelity and fortitude, such as
Judge Massey possessed in marked measure, For these were hard years, involving personal
privations and discomforts; loss of fortune through the vicissitudes of the mining business;
and long periods of the closest economy, devoted to grinding manual toil in the depths of the
earth.
Out of it emerged the man whom the citizens of the State never ceased thereafter to honor;
first, as a member of the Elko County delegation in the Sixteenth Session of the Nevada
Legislature, in 1893; then as District Attorney of Elko County, in 1895 and 1986; afterwards
as a Justice and Chief Justice of the Supreme Court of the Senate of Nevada, from 1897
to1903; and finally as a Senator of the United States, from the State of Nevada, in 1912.
In the intervals between his public services and duties, Judge Massey served faithfully and
well a large clientele, and his name will be long associated with the legal history of Nevada,
in the making of which he played an important part.
Judge Massey was married, in 1879, to Miss Florence Massey, a distant relative. Two
sons, Dr. R. R. Massey, of Verna, Illinois, and Dr. W. H. Massey, of the United States Navy,
issue of the marriage, together with his wife, formerly Miss Annie Sheehan, of Elko County,
Nevada, to whom he was married on February12,1898, several years after the death of his
first wife, survive him.
In politics, Judge Massey was a Republican. He stood high in the councils of his party, and
upon many occasions was honored by it. While United States Senator, at Washington, though
he served but a short time, he gained, by the sheer force of his intellect and personality, a
position of influence and power seldom reached there except by years of service; and when
the news of his death reached his former associates at Washington his untimely taking off
was genuinely mourned.
Judge Massey's was a well-rounded life. He lived well the roles of a good citizen, a
capable legislator, an able lawyer, an upright judge, a staunch friend, a dutiful husband and
father, and an honest man; a splendid example of the Western type of manhood. But above
all, while his associates at the bar will long respect his memory, and emulate his example, in
the broader fields of his activities he will be best and most tenderly remembered for his
courtesy, geniality, and the never-failing sympathy, helpfulness and kindliness with which he
was so generous, when the struggles and impetuousness of the forum were laid aside.
Therefore, Be It Resolved, That this Court be requested to cause this memorial to be spread
upon the records of
37 Nev. 511, 511 (1914) Memorial to William H. Beatty
In Memoriam
____________
Patrick A. McCarran
PROCEEDINGS
IN THE
SUPREME COURT OF THE STATE OF NEVADA
____________
Monday, September 17, 1914.
PresentHon. G. F. Talbot, Chief Justice,
Hon. F. H. Norcross,
Hon. P. A. McCarran, Associate Justices,

and Officers of the Court.
The committee heretofore appointed to draft appropriate resolutions expressing the sorrow
of the Court and Bar due to the death of Honorable William H. Beatty, formerly a Chief
Justice of this Court, presented the following memorial:
WILLIAM HENRY BEATTY
On August 4, 1915, at his home in San Francisco, died William Henry Beatty, who, in the
early part of his distinguished career, had been a District Judge of the State of Nevada, and a
little later, Chief Justice of our Supreme Court, and who was at the time of his death Chief
Justice of the State of California.
Your committee appointed to draft a suitable page to his memory finds that he was born in
the State of Ohio, in the village of Monclova, Lucas County, near Toledo, in the year 1838.
When about two years old he was taken by his parents to Kentucky, the native State of his
father, where was passed a part of the boyhood of the subject of this memorial. In 1853 he
accompanied his parents to California, traveling by way of the Isthmus of Panama, and settled
in the city of Sacramento, where his father took up the practice of law.
William H. Beatty came to California when he was fifteen and remained there two years,
then returning East
for academic and university education. He entered the University of Virginia, in which
institution of learning he studied for two years, but did not graduate, going back to
Sacramento and becoming an apprentice in the office of his father, under whom he studied
until the year 1861, when he was admitted to the bar. Nevada was then in the height of the
fame of its marvelous mining discoveries, and drew men from all parts of the world. Young
Beatty crossed the Sierras in 1863 and settled at Austin, then one of the thriving cities of the
State. He was elected City Attorney of Austin the following year. When Nevada was formally
admitted into the Union in 1864, he was elected District Judge for the Seventh Judicial
District of Nevada and served as such during the years 1865 and 1866, and as District Judge
of the Sixth Judicial District during 1867 and 1868. It is noteworthy that at the first election
held in the State of Nevada, at the time when William H. Beatty was elected District Judge,
his father, Henry Oscar Beatty, who also had moved to this State, was elected a Justice of our
Supreme Court. About the time of the mining excitement at Hamilton, Nevada, William H.
Beatty was elected District Judge of the Eighth Judicial District, White Pine County, in 1869,
and served in that capacity from the year 1870 to 1874, inclusive. He was elected Justice of
the Supreme Court of Nevada in November, 1874, and took his seat on the first Monday of
January, 1875, serving thereafter for six years upon the Supreme Bench, during the last two
years of which he served as Chief Justice.
Shortly after the expiration of his term as Justice of the Supreme Court of Nevada, he
returned to California and again entered the practice of law. In 1889 he was elected Chief
Justice of the Supreme Court of California, and was reelected again and again and filled that
position continuously up to the time of his death.
His long service as Chief Justice of California added to the fame already won as a jurist in
the State of Nevada.
It was during his service in our own State that his remarkable ability as an analyst of the
law first attracted attention. He made for himself a splendid reputation as an authority on
mining law. Many of his decisions, both in Nevada and California, have had a lasting effect
on the history of the two States. His decision, reported in the 84th Cal., as to the rights of
stockholders in corporations, became famous in the litigation that arose in the matter of the
American Sugar Refining Company.
His repeated election as Chief Justice of the Supreme Court of California indicated the
great confidence in his ability and character entertained for him by the people of his adopted
State. No other man has had the distinction of being the Chief Justice of the highest courts of
the States of California and Nevada. The Bench and Bar of Nevada, as they learned of the
honors heaped upon him in a sister State, took pride in the fact that this State first recognized
and honored his high abilities both as a lawyer and a judge.
Judge Beatty always retained a warm affection for the people of this State, and would
often turn aside from official labors to greet residents of this State and make warm and
affectionate inquiry regarding old friends here.
When Judge Beatty passed away, a full and useful life was ended and the warm
expressions of grief and tributes of respect paid by his fellow citizens affixed the final seal of
commendation to a long and honorable career. His industry kept pace with his capacity, and
his integrity was never questioned. Possessed in a high degree of the judicial temperament
and that impartiality which holds the scales of justice in equal poise, his decisions were
always rendered with a view to the right and to the advancement of the welfare and happiness
of his fellow men. The greatness of Chief Justice Beatty was a greatness attainable in kind, if
not in degree, by any man, for it was the greatness of goodness, of integrity, and of zeal to do
right. After the years of honor, he went to rest, leaving behind him a record which should be
an
example and an inspiration to men of his profession and a guide to good citizenship.
Benj. Curler,
Geo. S. Brown,
P. B. Ellis
William Woodburn,
W. S. Bonnifield.
The resolutions were approved by the Court, ordered spread upon the minutes and
published in the next Supreme Court Report, and the Clerk directed to forward copies to the
family of the deceased.
As a further mark of honor and respect the Court adjourned for the day.
____________

Nevada Reports 1914 (37 Nev.) PDF

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Nevada Reports 1914 (37 Nev.) PDF

Uploaded by

Copyright:

Available Formats

37 Nev.

You might also like