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38 Nev.

1, 1 (1914)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA
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OCTOBER TERM, 1914
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38 Nev. 1, 1 (1914) Dotta v. Hesson
[No. 2145]
In the Matter of EMILIO DOTTA, Petitioner, v. A. W. HESSON, E. E. CAINE, JOHN
CAZIER, as the County Board of Education of the County of Elko, Respondents.
[143 Pac. 305]
1. StatutesRepeal by Implication.
Repeals of statutes by implication are not favored.
2. Schools and School DistrictsHigh-School BuildingIssuance of County
BondsStatutes.
The act approved March 22, 1913 (Stats. 1913, c. 157), authorizing Elko County to issue bonds for, and
to construct and equip, a high-school building in the town of Wells, was not repealed or amended by the act
approved March 25, 1913 (Stats. 1913, c. 244), relative to the construction of county high-school
buildings.
3. StatutesGeneral and Special LegislationHigh School.
The act approved March 22, 1913 (Stats. 1913, c. 157), authorizing the county of Elko to issue bonds for,
and to construct and equip, a high-school building in the town of Wells, is not a special law violative of
Const. art. 4, sec. 21, providing that where a general law can be made applicable, all laws shall be of
general operation throughout the state.
Original Proceeding in prohibition by Emilio Dotta against A. W. Hesson, and others, as
County Board of Education of the County of Elko, State of Nevada.
38 Nev. 1, 2 (1914) Dotta v. Hesson
against A. W. Hesson, and others, as County Board of Education of the County of Elko, State
of Nevada. Dismissed.
Otto T. Williams, for Petitioner.
Milton M. Badt, for Respondents.
By the Court, Norcross, J.:
This is an original proceeding in prohibition. The relator, a citizen and taxpayer of Elko
County, seeks the order of this court prohibiting respondents, as the county board of
education of Elko County, from further proceedings punder that certain act 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, approved March 22,
1913. (Stats. 1913, p. 240.)
It is contended by counsel for relator that the act in question is a special law, and hence
violative of section 21 of article 4 of the state constitution; that the act was repealed by a
subsequent act entitled An act to provide for bonding counties for building and equipping
county high schools and dormitories or for either one of these purposes, and other matters
properly connected therewith, approved March 25, 1913. (Stats. 1913, p. 368.)
That if not so repealed, it was amended by the last mentioned act so as to require the two
acts to be read and construed together.
Section 1 of the act of March 25, supra, provides: Whenever the county board of
education in any county having a county high school shall certify to the board of county
commissioners of such county that a new county high-school building or dormitory, or both
of these are needed, or that it is necessary to enlarge one or both of the buildings in use, and
that the cost of the same is such that it is expedient to raise the necessary money therefor
by direct levy and that a bond issue for the purpose is advisable,
38 Nev. 1, 3 (1914) Dotta v. Hesson
it is expedient to raise the necessary money therefor by direct levy and that a bond issue for
the purpose is advisable, and shall furnish the board of county commissioners with a definite
statement of the amount of money needed therefor, said board of county commissioners is
hereby authorized and directed to submit the question of bonding the county for the amount
named to the voters of the county at the next general election; or said board may, in its
discretion, order a special election if so requested by the county board of education.
The purpose of the act last mentioned is fully shown by the provisions of section 1, quoted
supra. The act contains no provisions of express repeal. Section 10 provides: All acts or
parts of acts in conflict with this act are hereby repealed.
If there is any repeal of the prior act of March 22, it is by implication.
[1] It is a well-established rule, repeatedly applied by this court, that repeals by implication
are not favored. In State v. LaGrave, 23 Nev. 379, 48 Pac. 194, this court said:
The rule that courts are bound to uphold the prior law if it and a subsequent one may
subsist together, or if it be possible to reconcile the two together, is well settled. (McCool v.
Smith, 1 Black, 470, 17 L. Ed. 218; Endlich on the Interpretation of Statutes, sec. 21; see the
numerous authorities cited by note 1.) Unless the latter statute is manifestly inconsistent with
and repugnant to the former, both remain in force. (Industrial School Dist. v. Whitehead, 13
N. J. Eq. 290, and cases cited.) A general statute without negative words will not repeal the
particular provisions of a former one unless the two acts are irreconcilably inconsistent.
(State, ex rel. Dunkle, v. Beard, 21 Nev. 218, 29 Pac. 531.) The repeal, total or partial, of
statutes by implication is not favored. As to this rule there can be no difference of opinion,
and further authorities need not be cited.
[2] The act of March 25, supra. appears to apply only to cases where a county high school
is already established and a new county high school-building or dormitory is needed, or
where it is necessary to enlarge one or both of such buildings.
38 Nev. 1, 4 (1914) Dotta v. Hesson
and a new county high school-building or dormitory is needed, or where it is necessary to
enlarge one or both of such buildings. This, it seems to us, is the plain language of the statute.
The general school law provides a means for the establishing of a county high school without
special act of the legislature. (Rev. Laws, secs. 34133434.) The act of March 25, supra, is
in its character supplementary to these general provisions or to the provisions of any special
act under which a county high school has been established. There is nothing in the said act of
March 25 which would justify this court in holding that it operates either to repeal or amend
the special act of March 22, 1913.
[3] Since the passage of a special act by the legislature of 1895, providing for the
establishment of a county high school for Elko County (Stats. 1895, p. 59), a number of
similar acts have been passed authorizing the establishment of such schools in the counties of
Churchill (Stats. 1905, p. 144), Lyon (Stats. 1909, p. 145), Humboldt (Stats. 1913, p. 45),
White Pine (Stats. 1914, p. 4), and possibly others, inclusive of the act in question. The
passage of these several acts shows that the legislature and the people generally have regarded
such acts as not violative of the constitution as it has been interpreted by numerous decisions
of this court. It would be unfortunate indeed if we were now bound to hold this legislation
unconstitutional. Whatever room there may have been for argument when the question was
first presented as to whether this character of legislation was within the constitutional
inhibition, the question can no longer be regarded as an open one. The constitutionality of
similar legislation has been before the court repeatedly, and universally sustained. (State v.
Lytton, 31 Nev. 67, 99 Pac. 855, and authorities therein cited; Quilici v. Strosnider, 34 Nev.
9, 115 Pac. 177.)
It is unnecessary to determine the question raised as to whether prohibition is an
appropriate remedy, as the proceeding must in any event be dismissed.
The demurrer to the petition is sustained, and the proceeding dismissed.
____________
38 Nev. 5, 5 (1914) State v. Harmon
[No. 2156]
STATE OF NEVADA, Ex Rel. RICHARD BUSTEED, Relator, v. HARLEY A. HARMON,
as County Clerk of Clark County, Respondent.
[143 Pac. 1183]
1. ElectionsParty OfficesDe Facto OfficerWho Are.
One purporting to act as a member of a county central committee of a political party, and who held
proxies of other members, is at least a de facto officer, although disqualified by Stats. 1913, c. 282, sec. 18,
because the holder of an appointive public office; a de facto officer being one whose acts, though not
those of a lawful officer, the law upon principles of policy and justice will hold valid, because of the
circumstances under which he acts or for the benefit of third persons.
2. ProhibitionScope of RemedyCollateral Attack.
Prohibition will not lie to restrain the county clerk from placing upon the official ballot the name of a
nominee for justice of the peace selected by the county central committee to fill the vacancy upon the death
of the original nominee, because the chairman of the committee, who held three proxies, was disqualified
under Stats. 1913, c. 282, sec. 18, being the holder of an appointive public office, for the chairman was at
least a de facto officer, and his right to the office cannot be tested by prohibition against another officer.
Original Proceeding in prohibition by the State, on the relation of Richard Busteed, against
Harley A. Harmon, as Clerk of the County of Clark, and another. Writ denied.
Alfred Chartz, for Petitioner.
Geo. B. Thatcher, Attorney-General, and E. T. Patrick, Deputy Attorney-General, for
Respondent.
By the Court, McCarran, J.:
This is an original proceeding in prohibition. Petitioner seeks to prohibit the county clerk
of Clark County from placing upon the official election ballot the name of H. W. Harkins as
the nominee of the Republican party for the office of justice of the peace of Las Vegas
township. The allegations of the petition are not denied. It is there declared that the original
nominee of the Republican party for the office of justice of the peace of Las Vegas township
died on the 16th day of September last, and that the Republican county central committee,
assuming to act under the provisions of the statute of 1913, filled by appointment the
vacancy thereby created.
38 Nev. 5, 6 (1914) State v. Harmon
Republican county central committee, assuming to act under the provisions of the statute of
1913, filled by appointment the vacancy thereby created. The statute in that respect provides:
A vacancy occurring after the holding of any primary election shall be filled by the party
committee of the city, county, city and county, district or state, as the case may be. (Stats.
1913, p. 525.)
[1] At the meeting of the Republican county central committee of Clark County, one Roy
W. Martin was present, acting as chairman and taking part in the deliberations of the body,
and holding and exercising three proxies. It is contended that the acts of the committee in
filling the vacancy with the name of Harkins was void, in that by the provisions of our statute
of 1913 the said Martin was prohibited from being a member of the county central committee,
inasmuch as he was the holder of an appointive public office, to wit, health officer of the
county of Clark. Section 18 of chapter 282, Stats. 1913, provides: no holder of a public
position other than an office filled by the voters shall be a delegate to a convention for the
election district that elects the officer or board under whom he directly or indirectly holds
such position, nor shall be a member of a political committee for such district. (Stats. 1913,
p. 482.)
Without passing on the question as to whether the position held by Martin was one such as
is contemplated by the inhibition of section 18, it is sufficient to say that the right of Martin to
hold the place on the county committee cannot be attacked in this indirect proceeding in
which he is not made a party. The acts of Martin, in so far as they went in voting to fill a
vacancy on the Republican ticket, were at least those of a member de facto of that committee.
In the case of Walcott v. Wells, 21 Nev. 47, 24 Pac. 367, 9 L. R. A. 59, 37 Am. St. Rep. 478,
this court adopted a comprehensive definition of a de facto officer, that is:
One whose acts, though not those of a lawful officer, the law, upon principles of policy
and justice, will hold valid so far as they involve the interests of the public and third
persons, where the duties of the office were exercised:
38 Nev. 5, 7 (1914) State v. Harmon
the law, upon principles of policy and justice, will hold valid so far as they involve the
interests of the public and third persons, where the duties of the office were exercised:
(1) Without a known appointment or election, but under such circumstances of reputation
or acquiescence as were calculated to induce people, without inquiry, to submit to or invoke
his action, supposing him to be the officer he assumed to be.
(2) Under color of a known and valid appointment or election, but where the officer had
failed to conform to some requirement or condition, as to take an oath, give a bond, or the
like.
(3) Under color of a known election or appointment, void because the officer was not
eligible, or because there was a want of power in the electing or appointing body, or by reason
of some defect or irregularity in its exercise; such ineligibility, want of power, or defect being
unknown to the public.
(4) Under color of an election or appointment by or pursuant to a public unconstitutional
law, before the same is adjudged to be such.
[2] Whatever might be considered as to the ineligibility of Martin's membership on the
county committee of the Republican party, his right to membership on that committee cannot,
in our judgment, be raised in a proceeding of this nature. His acts being, as we have already
stated, the acts of a de facto officer, their validity is not properly a matter of judicial inquiry
where, as in this case, the proceedings are by way of prohibition against an entirely different
officer. The writ of prohibition cannot assume the functions of a writ of quo warranto. Title
to office cannot, as a general rule, be tried by other than direct proceeding.
From the foregoing, it follows that, inasmuch as the statute does not expressly declare the
acts of a committeeman under such circumstances to be void, and finding nothing in the
action of the county clerk to warrant the issuance of a writ of prohibition, it follows that the
writ should be denied.
38 Nev. 5, 8 (1914) State v. Harmon
issuance of a writ of prohibition, it follows that the writ should be denied.
It is so ordered.
____________
38 Nev. 8, 8 (1914) Quinn v. Small
[No. 2097]
JOHN QUINN, JAMES A. MAY, and F. J. PECK, Appellants, v. FRED L. SMALL,
GEORGE W. LIKENS, CHARLES H. RULISON, and W. H. PEARSON and M. E.
CAFERETTA (Co-partners doing business as PEARSON & CAFERETTA), and JOHN
DOE and RICHARD ROE, Respondents.
[143 Pac. 1053]
1. Adverse PossessionRecovery of Real Property.
Where defendants and their predecessors had continued under a deed executed in 1887 in the sole, open,
and notorious possession of a strip of ground by the side of a lot the boundary of which was in dispute, an
action by the holder of the record title thereto to recover its possession was barred.
2. EstoppelAcquiescence.
Where purchases by defendants and their predecessors were intended to include a strip of land and a
house thereon, their continued, open, and notorious possession of the strip and the house was notice of their
claim to plaintiffs or their predecessors subsequently obtaining their deeds to the lot; and in equity the
subsequent purchasers, with such notice, were estopped, by long acquiescence in the complete acts of
ownership exercised by the prior purchasers, from recovering the strip.
Appeal from the Second Judicial District Court, Washoe County; John S. Orr, Judge.
Action by John Quinn and others against Fred L. Small and others. Judgment for
defendants, and plaintiffs appeal. Affirmed.
Moore & Woodburn, for Appellants.
Brown & Belford and C. R. Lewers, for Respondents.
By the Court, Talbot, C. J.:
The plaintiffs, who are the appellants, brought this action to recover possession of a strip
of ground 22.8 feet wide, along the westerly side of lot 53 of the river front, according to
the original survey of the town, now city, of Reno, and for $1,200 damages for detention
and rents.
38 Nev. 8, 9 (1914) Quinn v. Small
wide, along the westerly side of lot 53 of the river front, according to the original survey of
the town, now city, of Reno, and for $1,200 damages for detention and rents. The defendants
pleaded estoppel and the statute of limitations. The appeal is from a judgment in their favor.
Ever since the filing of the town plat in 1871, the plaintiffs and their grantors have held the
record title to lot 53, which according to late surveys covers the tract in dispute, and to lots 54
to 86, inclusive, adjoining lot 53 to the eastward; and during that time the defendants and
their predecessors in interest have held the record title to lots 48 to 52, inclusive, lying to the
west of the ground in controversy.
The court found:
That the board houses upon the contested premises had been placed there long prior to the
year 1887, and that prior to October, 1887, the exact date being unknown, D. H. Haskell, who
had an interest in and supervision over the property as hereinafter stated, constructed a board
fence along lot 53, about fourteen inches easterly from this house, which fence remained
there until about two years prior to the commencement of this action.
That in May, 1887, one C. S. Martin, the predecessor in interest of the defendants,
received a deed to lots 49, 50, and 51 from one Anna R. Chambers.
That on the 8th day of October, 1887, Martin purchased lots 48, 50, and 52 from Charles
Crocker; that at the time of such purchase By Martin, Haskell acted as the agent of Crocker in
making the sale, and at the time of such sale was the owner of an undivided one-half interest
in lots 53 to 80, inclusive, and pointed out the fence as being the boundary line between the
premises purchased by Martin and lot 53 and the other lots to the eastward, then owned by
Haskell and the Mannings.
[1] That Martin, from the time that he entered into possession of the premises west of the
fence on October 8, 1887, under his deed from Charles Crocker, until he sold to W. H.
Pearson and others in May, 1906, continued in the sole, open and notorious possession of the
premises in dispute, which have since been held by his grantors, including the defendants
in this action.
38 Nev. 8, 10 (1914) Quinn v. Small
premises in dispute, which have since been held by his grantors, including the defendants in
this action.
That after Martin had gone into possession of the premises, and at a time more than ten
years prior to the commencement of this suit, it was agreed between him and A. H. Manning
that the fence was the boundary line between the property so owned by Martin and the lots
mentioned lying to the eastward, one-half of which were owned by the Mannings.
That on March 29, 1894, Haskell sold and conveyed to Martin an undivided one-half
interest of lots 53 to 86, and thereupon Martin became a cotenant with the Mannings in those
lots.
That thereafter Martin continued in the sole possession of the land west of the fence,
collected the rents from the house upon the tract in dispute, made repairs thereon, and
otherwise treated the property as his own, and always asserted his ownership up to the fence
adversely to the Mannings and to the whole world.
That the Mannings at all times acquiesced in the fence as the boundary line between
Martin's sole property and the property in which Martin was a tenant in common with them.
That in the year 1901, Martin, because of his agreement with the owners of the property
east of the fence that the fence was the boundary line of the lots purchased by him from
Crocker, and because of the long-continued acquiescence therein, and believing, because of
the statements made to him by Haskell, and because of the agreement and acquiescence of the
Mannings, that this fence was the east boundary line of his property in the river front, which
consisted in all of five 25-foot contiguous lots, by measuring a distance of 125 feet west from
the fence, gave up and surrendered to one Ida Robbins all his right and title to about 22.8 feet
in frontage of the land he would otherwise have been entitled to according to the official plat
of the lots as shown by the recent surveys; all of which he would not have done except for his
reliance upon the fence being the true east boundary of his five lots; that the area thus
surrendered to Ida Robbins was then, and is now, of greater value than the premises now
in dispute in this action.
38 Nev. 8, 11 (1914) Quinn v. Small
his reliance upon the fence being the true east boundary of his five lots; that the area thus
surrendered to Ida Robbins was then, and is now, of greater value than the premises now in
dispute in this action.
That Martin and his successors in interest, including the defendants, have improved and
cared for the disputed premises at their own expense for more than twenty years prior to the
bringing of this action.
That on the 7th day of May, 1906, Martin, desiring to sell to defendants, Pearson and
Caferetta and others all of the land lying west of the fence, then owned, claimed and
possessed by Martin, pointed out to the defendants, Pearson & Caferetta, the fence as the east
boundary line of the land owned wholly and exclusively by Martin and as the east boundary
line of lot 52, and thereupon Pearson & Caferetta, believing the statements of Martin and
relying upon the same, did purchase for a large consideration paid by them and their
associates to Martin all the property of Martin lying west of the fence and east of the line
fixed by Martin as the line between the property of Martin and that of Ida Robbins, and
received a deed from Martin in which the premises now in dispute were described as being lot
52 or a portion thereof.
That Pearson & Caferetta then believed that the fence was the east boundary of the
property so conveyed and described.
That thereupon Martin delivered to Pearson & Caferetta, and they, for themselves and their
cograntees, went into possession of all the premises west of the fence, with the knowledge
and acquiescence of the owners and claimants of the land east of the fence, and remained in
possession until they sold the premises to the appellants, Small, Likens, and Rulison.
That Pearson & Caferetta, as well known by Martin, purchased the premises by reason of
their situation and the improvements thereon, including the house now in dispute in this
action, and in reliance upon the representation of Martin, and with the belief that by such
purchase they were acquiring five full lots of 25 feet each, with the intent to claim all the
premises now in dispute lying west of the fence.
38 Nev. 8, 12 (1914) Quinn v. Small
purchase they were acquiring five full lots of 25 feet each, with the intent to claim all the
premises now in dispute lying west of the fence.
That on or about the 1st day of October, 1906, the defendants Small, Likens, and Rulison,
by various mesne conveyances, purchased for a large consideration paid by them, all of the
property of Martin lying west of the fence and east of the line agreed upon and fixed by
Martin as the line between the property of Martin and Ida Robbins.
That the defendants and their grantors then believed that the fence was the east boundary
of the property so conveyed.
That the defendants, Small, Likens, and Rulison, purchased the premises by reason of the
situation and improvements thereon, including the frame house now on the land in dispute,
and with the belief that they were acquiring five full lots of 25 feet frontage each, and went
into possession of all the premises west of the fence with the knowledge and acquiescence of
the owners and grantees of the land east of the fence, and have ever remained in possession of
the same.
That more than fifteen years before the bringing of this action, the respective grantors of
the opposing parties hereto, being then in the possession and ownership of the lands and
premises on each side of the fence, did by express agreement fix and establish the fence as the
east boundary of lot 52, and as the line between the premises owned and claimed exclusively
by Martin from and after his purchase in 1887 and the premises owned and claimed by
Haskell and Martin at all times between the years 1887 and 1894, and that since said
boundary was so fixed the defendants and their grantors have held, occupied and claimed at
all times the premises now in dispute west of the fence exclusively and adversely to all the
world, and have expended money in caring for and improving the property, in reliance upon
such boundary, and have fixed the boundary between the land claimed by them and Ida
Robbins in reliance upon the boundary so established.
38 Nev. 8, 13 (1914) Quinn v. Small
by them and Ida Robbins in reliance upon the boundary so established.
That for more than twenty years prior to the bringing of this action, the fence has been
treated and considered by long acquiescence, understanding and agreement of all persons
during that time, concerned in the ownership, possession, use, and occupation and assessment
of the premises on either side thereof as the established and recognized east boundary of lot
52, and as the established and recognized boundary between lots 52 and 53; that the same
persons, during all of that time, by common acquiescence and agreement, considered that the
land in dispute immediately west of the fence was actually lot 52 and not lot 53, or any part
thereof.
That all tax returns, reports, and statements on the property were in fact made upon it as lot
52, and it was so considered for all taxes and assessment purposes.
That the defendants, Small, Likens, and Rulison, and their grantors, have been in peaceful,
open, continuous, and notorious possession of lot 52 as the same is so established, by long
understanding and acquiescence, and including the premises now in dispute, for more than
ten years next prior to the bringing of this action, and during all of that time held the same
under a claim of right and ownership adverse to the plaintiffs and their grantors and the whole
world; that during all of that period the defendants and their grantors have paid all taxes and
assessments levied against the property now in dispute and the improvements thereon.
On behalf of appellants it is contended that C. S. Martin, laboring under a mistake as to the
actual location of the true line between lots 52 and 53, believed the line to be at the fence and
so informed his coowners in lots 52 and 86, inclusive, and
That he never claimed, or intended to claim, as his individual property, any lands except
those described in his deeds to lots 48 to 52, inclusive; that the owners of lots 53 to 86,
inclusive, never intended to surrender any part of lot 53 as described in their deeds, and
that the possession of Martin and his predecessors in interest to the west 22.S feet of lot
53 arose and continued under such mistaken belief; that it was not the intention of Martin
or his successors to hold or occupy or claim any land beyond the true line as fixed by the
original map of the town, now city, of Reno."
38 Nev. 8, 14 (1914) Quinn v. Small
part of lot 53 as described in their deeds, and that the possession of Martin and his
predecessors in interest to the west 22.8 feet of lot 53 arose and continued under such
mistaken belief; that it was not the intention of Martin or his successors to hold or occupy or
claim any land beyond the true line as fixed by the original map of the town, now city, of
Reno.
It is also the contention of appellants
That the facts in this case bring it squarely within the rule laid down by the court in the
case of McDonald v. Fox, 20 Nev. 364.
Different questions of fact are presented and there are elements of estoppel and limitation in
this case which do not appear in that one. The court properly found that the defendants and
their grantors, including Martin, during the many years mentioned, held and possessed the
land in controversy and to the west of the fence under claim of ownership against the
appellants, their predecessors in interests, and all others.
[2] The evidence indicates that the purchases made by the respondents and their
predecessors were intended to include the tract in controversy and the house thereon. This is
shown, not alone by the statements that the fence was the dividing line made and accepted at
the different times when sales were made of the property on each side of the fence, but from
the fact that the building on the contested ground was considered as included in the sales
made by the respondent's predecessors in interest, and that the undisputed possession and
control of the building was in the possession of the respondents and their grantors from the
beginning, and for a period far exceeding the statute of limitations.
In equity the appellants are as much estopped by long acquiescence of their grantors in the
purchase and sale and complete acts of ownership of the respondents and their grantors of the
house on the premises as if they had acquiesced in the building of a new house on the
contested ground, as Martin had done with Ida Robbins. (Small v. Robbins, 33 Nev. 297.) A
person who is led into purchasing a house by the representations, acts, and long
acquiescence of owners of land, sleeping upon their rights, is as much entitled to
protection as the man who, under similar circumstances, is induced to erect a building.
38 Nev. 8, 15 (1914) Quinn v. Small
A person who is led into purchasing a house by the representations, acts, and long
acquiescence of owners of land, sleeping upon their rights, is as much entitled to protection as
the man who, under similar circumstances, is induced to erect a building. The continued,
open and notorious possession of the house by the respondents and their grantors was notice
of their claim to the disputed premises at the time appellants and their predecessors purchased
or secured the deeds to lot 53.
In the McDonald-Fox case the disputed ground was the space between the two houses six
feet apart, and the line ran near the middle of this space. The plaintiff relied solely upon the
actual possession of the ground in controversy, and there was some dispute regarding her
claim of exclusive use and occupancy of the space, and as to whether the fence at the side had
been placed there before or after she purchased. There was no question regarding the right to
the valuable building upon the ground or regarding the sale of a house or improvements, or
the land, under mistaken representations as to the line, or otherwise, and no undisputed
evidence of estoppel or of adverse possession such as relate to the building and ground in
controversy in this action.
The present case is more nearly supported as to the statute of limitations by the one of Adams
v. Child, 28 Nev. 169, and the authorities there cited, and as to estoppel by the one of Small v.
Robbins, 33 Nev. 279.
The judgment of the district court is affirmed.
On Petition for Rehearing
Per Curiam:
Rehearing denied.
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38 Nev. 16, 16 (1914) Rehling v. Brainard
[No. 2116]
JOSEPH REHLING, Respondent, v. E. A. BRAINARD,
Appellant.
[144 Pac. 167]
1. TrialReception of EvidenceRestriction to Special Purpose.
In a trial, without a jury, of a husband's action for criminal conversation, the admission in evidence of
letters to plaintiff from his wife containing matters competent and matters incompetent was not error, where
the court stated that the letters were admitted merely to contradict any inference that the husband and wife
were living together, and there was other and competent evidence relative to the adultery relied on as the
basis of the action.
2. Appeal and ErrorGround for ReversalAdmission of Evidence.
Where incompetent evidence is admitted in a trial without a jury, a reversal is warranted only when the
record shows that the competent evidence was insufficient to support the findings, or that the improper
evidence affected the result.
3. Appeal and ErrorHarmless ErrorAdmission of Evidence.
A party cannot complain on appeal of the admission of incompetent evidence which inures to his benefit.
4. WitnessesCompetencyHusband and WifeConsent to Testify.
Under Rev. Laws, sec. 5424, providing that a wife cannot testify for or against her husband without his
consent, a wife was competent to testify for her husband in his action for criminal conversation, where the
husband and wife had each consented in open court that the other might testify to anything existing
between them having a bearing on the case.
5. Husband and WifeAction for criminal ConversationSufficiency of Evidence.
Evidence in a husband's action for criminal conversation, tried without a jury, held to sustain a judgment
for plaintiff.
6. Husband and WifeAction for Criminal Conversationissues.
In a husband's action for criminal conversation, the issue is whether the wife has been guilty of adultery
without his consent or connivance.
7. Husband and WifeCriminal ConversationDamages RecoverableMitigation.
In a husband's action for criminal conversation, lack of consortium is an element of the damages, but the
fact that the breaking up of the home or the destruction of the marital relation has been only partial, and
that there has been a reconciliation, may be considered in mitigation of damages.
38 Nev. 16, 17 (1914) Rehling v. Brainard
8. Appeal and ErrorFindingsEvidence.
The judgment in a case tried without a jury will not be disturbed on appeal, though the evidence is
conflicting, where it is supported by any substantial evidence.
Appeal from the Second Judicial District Court, Washoe County; John S. Orr, Judge.
Action by Joseph L. Rehling against E. A. Brainard. From a judgment for the plaintiff,
defendant appeals. Affirmed.
Massey & Springmeyer, for Appellant.
Stoddard, Moore & Woodburn, for Respondent.
By the Court, McCarran, J.:
This is an action in damage for criminal conversation between appellant and the wife of
respondent. Damage was prayed for in the sum of $10,000. The case was tried in the lower
court without a jury. Judgment was rendered in favor of plaintiff in the sum of $2,000. From
the judgment and from the order denying a new trial the defendant appeals.
The defense interposed by the pleadings denies the alleged wrongful act, and the damage,
and by way of affirmative defense appellant alleged that respondent and his wife, prior to the
19th day of June, 1911, conspired to manufacture evidence against the appellant, and
conspired to wrongfully accuse appellant of the acts alleged in the complaint for the purpose
of extorting money from him.
There are a number of assignments of error asserted by appellant in the case. We will
consider only that assignment most seriously urged, and the only one which, in our judgment,
demands serious consideration.
[1] The respondent on redirect examination was fully interrogated by his attorneys relative
to the relationship existing between himself and wife subsequent to the 19th day of October,
1911, the date on which he testified to having seen his wife in a compromising position with
appellant. His testimony disclosed that some time after the 19th day of October he left the
state and went to California, and, having identified certain letters received by him from
his wife while he was in the State of California, the same were admitted in evidence over
the objection of appellant.
38 Nev. 16, 18 (1914) Rehling v. Brainard
after the 19th day of October he left the state and went to California, and, having identified
certain letters received by him from his wife while he was in the State of California, the same
were admitted in evidence over the objection of appellant. The admission of these letters in
evidence is the principal error relied upon by appellant for reversal in this case. The evidence
tended to establish that these letters were written by Annie Rehling, wife of respondent, after
the 19th of October, and were received by respondent, according to his testimony, while he
was in the State of California. The appellant, Brainard, had no knowledge of the sending and
receiving of the letters, nor of their contents. The letter of December 20 contains a complete
confession on the part of respondent's wife, and a full statement disclosing the illicit relations
existing between Brainard and herself.
The letter of December 10 is, in substance, a request for respondent to return to Reno, and
among other things contains these words: Well, all at once my eyes are open. Now I am
ready to talk and if you think of me as you said you did then, and seemed to when you left, I
am your friend in every sense of the word as you said you were mine, and want you to come
here now and hear what I have to say.
These letters contained other statements indicating that the respondent had left the home,
and that there was at least a temporary separation.
It is the contention of appellant that these letters, purporting to have been written by the
wife of respondent without the knowledge or assent of appellant, are objectionable under the
rule excluding hearsay testimony, and also under the rule excluding self-serving declaration.
There is nothing in the record, in our judgment, that would relieve these letters of their
objectionable features in so far as their contained admission and declarations of acts of
adultery are concerned. Each of the letters was subject to exclusion under all the rules
invoked if they had been admitted for any other purposes than that expressly stated by the
court when admitting them.
38 Nev. 16, 19 (1914) Rehling v. Brainard
In reviewing this particular phase of the case, however, we must take into consideration
the circumstances under which the letters were admitted, the purpose for which they were
admitted, and the force and effect apparently given to them by the trial judge on arriving at
his decision. A review of this phase of the case necessarily demands a consideration of the
entire field covered by the evidence produced at the trial.
The wife of the respondent, the party from whom these letters purported to have emanated,
was called as a witness by respondent, and her testimony given at the trial disclosed a chapter
of her life which was replete with debauchery in which the appellant, according to her
testimony, was the star actor. Her story told upon the stand, both in direct and through the
course of the most searching cross-examination, disclosed a series of acts of adultery
committed with the appellant, not only in her own home, but in various lodging-houses in the
city of Reno prior to the 19th of October. She testified in detail as to the occurrences on the
day of the 19th of October, the date on which it is alleged the respondent discovered appellant
in a compromising position with her, and in her testimony she admits the act of adultery on
that date. Her testimony not only covers the ground covered by the inadmissible portions of
the letters, but without referring to the letters goes much further, and much more in detail. In
her testimony she corroborates the statement made by respondent as to the acts and utterances
of the respective parties, to wit, herself, the appellant, and the respondent in the presence of
each other on the 19th day of October.
As we have already stated, it requires no citation of authorities and no critical analysis to
further the conclusion that the letters in question were inadmissible to prove adulterous acts.
Their incompetency was a matter manifest and apparent on their very face. With reference to
the admission of the letters the record discloses the purpose for which they were admitted,
and the attitude of the court in admitting them. The court in admitting them in evidence
expressly stated the purpose for which the letters were admitted, i. e., "contradicting any
inference that might be drawn that they were living together as husband and wife,
cohabiting together," subsequent to October 19.
38 Nev. 16, 20 (1914) Rehling v. Brainard
them in evidence expressly stated the purpose for which the letters were admitted, i. e.,
contradicting any inference that might be drawn that they were living together as husband
and wife, cohabiting together, subsequent to October 19.
It has been held that, even in cases where a trial was conducted before a jury, the
admission of incompetent evidence contained in an instrument, part of the contents of which
was competent, would not constitute reversible error where the court gave instruction to the
jury directing them to disregard the incompetent portion, or where the court specifically
instructed the jury as to the purpose for which the instrument or its contents should be
considered by them. (Billings v. Albright, 66 App. Div. 239, 73 N. Y. Supp. 22; Ball v.
Marquis, 122 Iowa, 665, 98 N. W. 496.)
Our reference to this rule applicable to the admission of evidence of this character in the
trial of cases before a jury is made without conferring upon it either our approval or
disapproval. The established and recognized rules applicable to the admissibility of evidence
should, in our judgment, be closely and carefully adhered to, with a view that nothing may
inject itself into the record excepting that which is properly admissible under the applicable
rules. Strict adherence to these rules forms the surest avenue by which litigation may be
speedily determined and by which litigants may be saved interminable annoyance and
expense attendant upon reversals by courts of last resorts, and hardshipful retrials.
In a case such as this where the trial is conducted before a court sitting without a jury, it
may, in our judgment, be properly presumed, unless the contrary appears, that the court in
arriving at its conclusion considered only such evidence as was legally admissible. (Gernert
v. Griffin, 28 Okl. 733, 116 Pac. 439; Lee v. Railway Co., 67 Kan. 402, 73 Pac. 110, 63 L. R.
A. 271.)
As we have already stated, the incompetent evidence admitted by way of the letters in
question was not the only evidence establishing the acts of adultery. Other and competent
evidence was before the court by way of the testimony of the wife of respondent, and if the
court deemed her testimony worthy of belief, he was warranted in giving it such weight
and consideration as he saw fit.
38 Nev. 16, 21 (1914) Rehling v. Brainard
the testimony of the wife of respondent, and if the court deemed her testimony worthy of
belief, he was warranted in giving it such weight and consideration as he saw fit. The writer
of these letters, wife of the respondent, having taken the stand as a witness for respondent,
testified as to all of the matters touched upon in the letters. She was subjected to a long and
searching cross-examination, going into every phase of the case. Her testimony in this respect
was not objectionable; it was competent, relevant, and material.
[2] We think a rule sufficiently established and worthy of adherence is applicable here, i.
e., where incompetent evidence is admitted in a trial of a cause by a court sitting without a
jury, a reversal is only warranted when it is apparent from the record that the competent
evidence was insufficient to support the judgment, or when it is affirmatively shown that the
improper evidence affected the result. (Miller v. Foster, 28 Okl. 731, 116 Pac. 438; Gernert
v. Griffin, supra.)
It cannot be assumed that the incompetent evidence, which was inseparable from the
competent statements contained in the letters, affected the conclusion reached by the trial
judge when his decision in admitting the evidence excluded the incompetent portion from
consideration. It must be assumed, in the absence of a showing to the contrary, that the trial
judge adhered to his position as stated when he admitted the letters in evidence. The rule that
injury will be presumed where error is shown unless the contrary appears affirmatively cannot
apply where, in a case like this, the incompetent matter, inseparably attached to competent
matter, was expressly referred to as not being admissible, or where the admissibility of the
instrument is limited to a specified purpose for which it is competent. If the testimony of the
wife of the respondent given before the trial court, with the opportunity afforded the court for
careful scrutiny and observation of the witness, carried conviction to the mind of the court as
to the truth of her assertions, it was sufficient in itself to support the finding.
38 Nev. 16, 22 (1914) Rehling v. Brainard
This court has heretofore held that the admission of incompetent evidence in the trial of a
cause by the court without a jury should not of itself be sufficient to warrant a reversal of the
judgment, if an affirmance of the judgment is otherwise sustained by a preponderance of
competent evidence. (Fleeson v. Savage Silver M. Co., 3 Nev. 157; Robinson v. Imperial
Silver M. Co., 5 Nev. 44.) Other courts have held to the same effect. (Smith v. Scott, 51 Wash.
330, 98 Pac. 763; Alexander v. Wellington, 44 Colo. 388, 98 Pac. 631.)
The letters were admitted solely for the purpose of contradicting the inference that
respondent was cohabiting with his wife subsequent to the date on which knowledge of her
adultery was brought home to him. There were certain statements in the letters which might
be considered as tending to disprove such inference. They were properly admissible for this
purpose, and under the rule already cited, it must be presumed that the court regarded the
letters for no other purpose. (Willis v. Bernerd, 131 Eng. Rep. 439; Ball v. Marquis, 122
Iowa, 665, 98 N. W. 496; Billings v. Albright, 66 App. Div. 239, 73 N. Y. Supp. 22.)
[3] The letters introduced by the respondent, taken in connection with his testimony,
establish a fact against his interest, viz, that the acts of appellant caused only a temporary
separation of respondent from his wife, hence lessening the injury, and this, no doubt, was the
basis for the court's conclusion in fixing the damages. Of this the appellant cannot complain,
inasmuch as the admission of the letters inured to his benefit. (Lamance v. Byrnes, 17 Nev.
197, 30 Pac. 700.)
[4] The wife of respondent was a competent witness to testify in his behalf. Section 482 of
the civil practice act (Rev. Laws, sec. 5424) provides:
A husband cannot be examined as a witness for or against his wife without her consent,
nor a wife for or against her husband without his consent; nor can either, during their
marriage or afterwards, be, without the consent of the other, examined as to any
communication made by one to the other during marriage.
38 Nev. 16, 23 (1914) Rehling v. Brainard
made by one to the other during marriage. But this exception shall not apply to a civil action
or proceeding by one against the other, nor to a criminal action or proceeding for a crime
committed by one against the other.
As we have already stated, the record discloses consent given by the respondent and by his
wife, respectively, in open court that the other might testify as a witness about any and all
facts and circumstances and mutual confidences which existed between them having a
bearing on the case. The error contended for in this respect not being seriously urged by
appellant, we deem it sufficient to say that the action of the trial court in permitting the
witness Annie Rehling, wife of respondent, to testify was not an error under the statute cited.
(Scheffler v. Robinson, 159 Mo. App. 527, 141 S. W. 485; Smith v. Meyers, 52 Neb. 70, 71
N. W. 1006; Wigmore on Evidence, sec. 2241.)
[5] As we view the evidence as disclosed by the record in this case, it was sufficient to
support the judgment, if in the opinion of the trial court the testimony of the wife of
respondent was worthy of belief, and we find nothing in the record to lead us to assume the
contrary. The plea of appellant asserting a conspiracy on the part of respondent and his wife,
and the carrying out of the conspiracy on the 19th of October by respondent and wife as
coconspirators, is, in our judgment, inconsistent with the acts and conduct of appellant
himself subsequent to the 19th of October, inasmuch as it is disclosed from the record, by the
testimony of appellant, that on several occasions after the 19th of October, Annie Rehling, the
wife of respondent, visited the place of business of appellant, and while there transacted
business with appellant, and received credit from appellant, and merchandise sold to her by
appellant on credit, as he testifies, was delivered to her house, the place at which, according
to his contention, he had been made the subject of a previously arranged conspiracy to extort
money from him. Moreover, the debauching of respondent's wife, according to her own
testimony, was not confined to the date of October 19. She testifies to numerous acts of
adultery committed by herself and appellant prior to the 19th of October, the date on which
they were caught in the act by respondent.
38 Nev. 16, 24 (1914) Rehling v. Brainard
appellant prior to the 19th of October, the date on which they were caught in the act by
respondent.
[6-7] The issue in cases of this character is as to whether or not the appellant committed
adultery with the wife of respondent without the consent or connivance of the latter. This
being proven, the amount of damages in which the party sued must respond is a matter
depending upon such mitigating circumstances as may be shown to appear. The lack of
consortium of the spouse is always an element upon which damages are estimated, and when
this does not appear, or where, as in this case, there appears a reconciliation and only a
partial, if any, breaking up of the home, or only a partial, if any, destruction of the marital
affection or relation, these elements are properly considered in mitigation of damages. (Smith
v. Meyers, supra; Billings v. Albright, supra; Scheffler v. Robinson, supra.)
[8] The question as to whether or not the appellant was guilty of adultery with the wife of
respondent was one to be determined by the trial court. There is a substantial conflict in the
evidence. The testimony of respondent tends to establish the fact by circumstantial evidence,
while the testimony of Annie Rehling was a direct and positive accusation, not alone as to
one occurrence, but as to many. A complete denial of all of these statements is in the
testimony of respondent. There was evidence eminently substantial to support the finding as
to adultery. Following the almost universal rule that where there is a substantial conflict in the
evidence, an appellate court will not disturb the decision of the court below, and especially in
view of the fact that the decision is supported by substantial evidence.
Other minor errors are asserted by appellant, but we deem them unimportant or
nonprejudicial.
The judgment and order appealed from are sustained.
It is so ordered.
____________
38 Nev. 25, 25 (1914) Howard v. Wright
[No. 1941]
M. J. HOWARD and JOHN PICETTI, Appellants, v. JOHN WRIGHT and
JOHN WRIGHT, Jr., Respondents.
[143 Pac. 1184]
1. Adverse PossessionAcquisition of Easement by PrescriptionPermissive Use.
The permissive use of one's premises, however long continued and whether the permission be express or
implied, confers no rights of continued enjoyment.
2. Adverse PossessionEstate by PrescriptionEssential ElementsAdverse User.
To constitute the adverse user which is essential to the acquisition of an estate by prescription, it is
essential that the possession be by actual, open, and notorious occupation, hostile to the title of the owner
of the servient estate, and that it be under an exclusive claim of right, and be continuous and uninterrupted
for five years prior to the commencement of the action.
3. EasementsAcquisition by PrescriptionSufficiency of EvidenceRight of Way.
Evidence in an action to enjoin defendants from trespassing on plaintiffs' land held to show that
defendants' use of the right of way claimed over such land was permissive, and hence could not ripen into
an easement by prescription.
4. EasementsRight of WayAcquisition by PrescriptionPresumption.
Where a landowner opens and keeps open a road across his land for his own use, the fact that an
adjoining owner makes use of the road under circumstances not interfering with the former's use creates no
presumption that the latter's use of the road is adverse so that it can ripen into an easement by prescription.
5. EasementsExistence of Adverse RightUse of Way by Owner.
No adverse right can exist in a way used by the owner of the land over which it passes.
6. EasementsRight of WayLeaving of GateEffect as Evidence.
The act of the owners of land in leaving a gate across a way of which they themselves made use tended to
rebut the presumption that the use of the way by an adjoining owner was adverse.
7. EasementsPrescriptionAdverse User of Right of WayRepairs.
Where not only the adjoining owner, but the owner of the land over which a way was established, used
the way, the act of the adjoining owner in constructing and maintaining bridges and in doing grading did
not make his use adverse, so that it could ripen into an easement by prescription.
38 Nev. 25, 26 (1914) Howard v. Wright
8. EasementsRight of WayPresumption from Use.
The presumption of a right arising from the unexplained use of a way across another's land for five years
in negatived by proof that claimant used the way in common with others.
9. EasementsRight of WayUse in Common with Owner and Others.
Where the owner of premises uses a way, its enjoyment and use by another in common with the public
generally must be regarded as being by permission and under an implied license, and not adverse, unless
there be some decisive act on the part of that other to indicate a separate and exclusive use under claim of
right.
Appeal from the Second Judicial District Court, Washoe County; John S. Orr, Judge.
Action by M. J. Howard and another against John Wright and another. From judgment for
defendants and denial of new trial, plaintiffs appeal. Reversed and remanded.
Mack, Green, Brown & Heer, for Appellants.
W. A. Massey, for Respondents.
By the Court, McCarran, J.:
This is an appeal from a judgment and decree of the district court of the Second judicial
district, by which judgment and decree a right of way across the property of the plaintiff
Howard was declared in favor of the defendant John Wright; the right of way being described
as a strip of ground theretofore traveled by the defendants and others, commencing at the first
gate south of the corral of respondent to the plaintiff Howard's ranch upon the east side of that
certain highway leading from Reno, Nevada, to Carson City, Nevada, and extending easterly
from said gate to and across the lands of plaintiff, Mrs. M. J. Howard, to that certain gate in
the partition fence between the lands of Howard and Wright, which gate is situated near the
barn of said defendant John Wright, said right of way being twenty feet in width and as
theretofore traveled by the said defendants and others. In addition to this a perpetual
injunction was issued against the plaintiff Howard whereby the plaintiff was enjoined from
closing up, obstructing, or in any way interfering with the right of way described, so as to
prevent a free and undisturbed use of the same by the defendant Wright.
38 Nev. 25, 27 (1914) Howard v. Wright
enjoined from closing up, obstructing, or in any way interfering with the right of way
described, so as to prevent a free and undisturbed use of the same by the defendant Wright.
The decree rendered by the trial court in this case grew out of an action wherein the
plaintiff Howard and her lessee sought to secure a perpetual injunction against the defendant
Wright, restraining the defendant from trespass or entry upon the lands of plaintiff. A
temporary injunction was granted plaintiff upon the filing of her complaint. Together with the
injunctive relief, plaintiff sought to recover damages against the defendant in the sum of $300
for trespass alleged to have been committed by the defendant Wright and his servants upon
the premises of plaintiff. The premises on which the trespass is alleged to have been
committed is a field owned by the plaintiff Howard, bounded on the west by the Virginia
road, a public highway leading from the city of Reno to Virginia City, and bounded on the
east by a fence which separates the field from the premises and property of the respondents
Wright. It is the contention of respondents that a right of way through and across the field has
been acquired by them by prescription, inasmuch as they have for many years past and in fact,
as the record discloses, since the date of respondent's first occupancy of their premises, to wit,
on or about 1863, passed across and over the field in question without asking for or receiving
permission from the owners of the field.
It is not the contention of the respondents that this is the only avenue by which they can
gain access to their premises. In fact, the record shows that another road exists which is the
usually traveled road, but which makes the distance somewhat longer in going to or coming
from the city of Reno. It is disclosed by the record that the appellant Howard purchased the
premises in question from Gregory and Dresler, and that she, together with her husband, took
up occupancy on the place April 10, 1867, and in her testimony, given at the trial, she
nowhere denies that the respondent Wright and his family, as well as others who had
business at the Wright ranch, passed across her field in an easterly and westerly
direction, first entering the field at the gate immediately in front of her house, passing
across the field to the gate in the vicinity of the Wright residence.
38 Nev. 25, 28 (1914) Howard v. Wright
denies that the respondent Wright and his family, as well as others who had business at the
Wright ranch, passed across her field in an easterly and westerly direction, first entering the
field at the gate immediately in front of her house, passing across the field to the gate in the
vicinity of the Wright residence. She nowhere contends that permission was ever asked by the
respondent or any of his family to pass through the original gate and across this field, nor
does she contend, in her testimony, that she ever questioned the right of respondents to pass
across the premises. It appears from the record that the way in question was one marked by
several bridges crossing artificial and natural waterways, running through the fields. It
appears that there was no well-defined track or road, other than that which was marked by
these bridges, and at one place in the field some work had been done in the way of grading.
This work was done by the respondents Wright or those under them. The testimony of the
respondent Wright, as well as that of his son, discloses that in the year 1890 he asked for and
obtained permission from appellant to change the position of the gate entering into the field
from the Virginia road. This fact is also testified to by the appellant. Pursuant to permission
thus granted, the entrance formerly used by the Wrights on the occasions when they crossed
the field was abandoned by them, and a gate was put in by respondent at a point about fifteen
rods further south. This gate was used as a place of entrance by the respondent and the
members of his family from the year 1890 up to a short time before the commencement of
this case, at which latter date the respondents' lessee fastened the gate with a chain and locked
the same. From the record it is disclosed that many others, in addition to the respondent and
his family, entered the Howard field and crossed the same, some going to the Wright ranch
and others to adjoining ranches, and still others to the mountain ranges lying to the eastward.
One principal question is presented for determination in this case, viz, Was the right to
cross the Howard field originally obtained by permission, either implied or expressed?
38 Nev. 25, 29 (1914) Howard v. Wright
originally obtained by permission, either implied or expressed? In considering this question in
connection with the facts presented a secondary question is involved. If the right to cross the
Howard field was not originally acquired by permission, either expressed or implied, was it
acquired adversely to the appellants or their predecessors in interest? The first question is one
depending upon the facts presented; the second depends largely upon the acts and conduct of
the respondents.
[1] At the outset it must be observed that it is a rule of law almost universally recognized
that a permissive use to the premises of another for any length of time confers no rights to
continued enjoyment. The owner may prohibit the use or may discontinue it altogether at his
pleasure as long as it is merely permissive. (Roe v. Walsh, 76 Wash. 148, 135 Pac. 1031, 136
Pac. 1146; Nellis v. Countryman, 138 N. Y. Supp. 246; Really v. Really, 245 Mo. 417, 151 S.
W. 415; 14 Cyc. 1151.)
[2] If the right is one adverse to the owner of the servient estate, then it must appear that
the elements requisite to make out an adverse user are present. These elements are:
FirstThe possession must be by actual occupation open and notorious, not clandestine.
SecondIt must be hostile to the title of the owner of the servient estate. ThirdIt must be
held under a claim of title, exclusive of any other right as one's own. FourthIt must be
continuous and uninterrupted for a period of five years prior to the commencement of the
action. (Anthony v. Kennard Bldg. Co., 188 Mo. 704, 87 S. W. 921.)
In order to perfect an easement by occupancy for five years, the enjoyment must be
adverse, continuous, open, and peaceable.
Nothing less than an adverse user, under claim of legal right, will perfect an easement by
occupancy for the statutory time. A use acquired merely by consent, permission, or
indulgence of the owner of the servient estate can never ripen into a prescriptive right, unless
the user of the dominant estate expressly abandons and denies his right under license or
permission, and openly declares his right to be adverse to the owner of the servient
estate.
38 Nev. 25, 30 (1914) Howard v. Wright
denies his right under license or permission, and openly declares his right to be adverse to the
owner of the servient estate. (Hurt v. Adams, 86 Mo. App. 73.)
In the latter case, his adverse right must be openly declared and continuously pursued for the
period prescribed by the statute in which a prescriptive right may be acquired. (Cobb v.
Davenport, 32 N. J. Law, 369; Swango v. Greene, 155 Ky. 227, 159 S. W. 692.)
The rule that precludes a permissive use from ripening into a right to continued enjoyment,
where the permission, consent, or license is expressly given is no less effective where the
permission or license may be implied. (Thomas v. England, 71 Cal. 456, 12 Pac. 491.)
[3] The facts as presented by the evidence in this case disclose two significant incidents
when viewed in the light of the foregoing observations as to the law. The one is the user by
the respondents of the original gate at the west terminus of the claimed way. The other, the
user of the gate at the west terminus after the change made by request of respondents in 1890.
It is admitted by all parties in the record, familiar with the past history of the Howard field,
that the premises were originally taken up and at least partially fenced by Gregory and
Dresler, on or about the year 1862. The farm house constructed by Gregory and Dresler was
in approximately the same position as that now occupied by the appellants, being on the west
side of the Virginia road and opposite to the field over which the right of way is claimed. East
of the Howard field was a tract of land located by the respondent Wright, and other tracts in
the same vicinity were taken up by Clow, Smith, Savage, and others, who on numerous
occasions, according to the testimony of the respondent Wright, passed through the Howard
field by way of the original gates mentioned.
It is disclosed by the testimony of the respondent John Wright, Sr., that the Howard field
in question was fenced and inclosed prior to the time at which Howard obtained possession
thereof, and while it was under the control and ownership of Gregory and Dresler; and,
bearing upon the question of implied consent given by the original owners of the field to
the respondent Wright, the testimony of Gregory is significant.
38 Nev. 25, 31 (1914) Howard v. Wright
possession thereof, and while it was under the control and ownership of Gregory and Dresler;
and, bearing upon the question of implied consent given by the original owners of the field to
the respondent Wright, the testimony of Gregory is significant. He says that he came to the
place to live for the first time in the spring of 1860, and lived there until about 1867; that
about that time he sold the place to Howard and Goodwin. He testifies that soon after going
to the place, and probably in the year 62 or 63, he inclosed, or at least partially inclosed, the
field in question with a fence, and, referring to the original gate leading into the west side of
the field from the Virginia road opposite the Howard house, he testified:
Q. Now did you construct any gate leading from your place into the field or from the road
into the field? A. Yes, sir; we had a gate.
Q. Whereabouts was that gate built? A. Well, the gate, I do not recollect exactly, but
somewheres, somewheres opposite the house where I lived.
Q. Just about opposite the house? A. Somewheres in there. Q. Did it lead into a corral or
stockyard or field? A. Well, of course, the gate went into the meadow, into the field.
Q. Can you state about what time that gate was built by you? A. Well, I don't know.
Q. Was it soon after you went there, or was it before, or how long a time after you went
there? A. Well, it was some time, I think, after I first went there, probably 62 or 63
somewhere. * * *
Q. Now, then, for what purpose did you build this gate that was opposite your house there
leading into your field? A. What purpose?
Q. Yes. What was the object in constructing the gate there? A. Well, I wanted the gate for
my own use, a gate into my field.
Q. Now, did any of your neighbors use that gate at any time to your knowledge? A. Yes.
38 Nev. 25, 32 (1914) Howard v. Wright
Q. Who were they? A. Well, there was Mr. Wright, he used it to go through there, and
Mr. Clow and Mr. Smith used to live there, and others.
Q. Now, did you make any objection to their using the gate? A. No, I never made any
objection while I was there.
Q. Why not? A. I couldn't say exactly, I only just let them go through as neighbors,
something that way.
Q. The relations between you and Mr. Wright were friendly or unfriendly; how were the
relations between you and Mr. Wright? A. Well, we and Mr. Wright was always on good
terms, never had any trouble with him.
Q. Did Mr Wright ever pay you anything for the privilege of using this gate or this road
that the gate led into? A. No, sir.
The gate here referred to was originally the gate at the west terminus of the claimed right
of way.
Nothing appears from the record in this case that would indicate that the respondents, or
any person other than Gregory, either demanded the placing of the gate in the position in
which it was originally placed by Gregory or had anything to do with its construction or
maintenance. As disclosed by the record, the original gate, from the Virginia road into the
Howard field, was used as a place of entrance into that field by Gregory, the original owner,
and also by the Howards. It was also used by other parties whose convenience it suited to take
a near cut to the Wright ranch, or other places in that vicinity.
[4] It is our judgment that the law in this respect is well established that where the owner
of land opens a road across it for his own use, and keeps it open for his own use, the fact that
he sees his neighbor, or other parties, also making use of it under circumstances that do not
tend to injure the road or interfere with his own use of it, will not justify the inference that he
is yielding to his express claim of right, or that his neighbor is asserting any right. (Anthony v.
Kennard Bldg. Co., 188 Mo. 704, 87 S. W. 921; Harkness, et al., v. Woodmansee, 7 Utah,
227, 26 Pac. 291.)
38 Nev. 25, 33 (1914) Howard v. Wright
The circumstances surrounding the user of the gate testified to by Gregory as being the
original opening through which the respondent Wright passed, indicating, as they do, to our
mind that such user was as consistent with the idea of permission as they were with adverse
claim, the burden was with respondent to establish his adverse claim by something more than
the mere passage over the land for the time testified to, even with the knowledge of the
appellants and their predecessor. As was stated in the case of Anthony v. Bldg. Co., supra,
mere use of a passage over another's land for a long time with his knowledge is not
necessarily an adverse use. The circumstances may be such as to authorize an inference that
the use is adverse, but they may also be such as to intimate that the use was by permission.
The use necessary to create or establish an easement by prescription, as we have already
stated, must be adverse and under claim of right. It is true that these elements may be inferred
from the circumstances, but they cannot be inferred, unless the circumstances justify the
inference. We find nothing in the record with reference to the placing of the gate by Gregory,
at the place which afterward became the west terminus of the claimed right of way, from
which act it could be inferred that it was placed there by the witness in recognition of the
right of others to pass through, or that respondents in passing through the gate did so in any
other spirit than that of the recognition of a neighborly courtesy.
The record discloses that the appellants, as well as their predecessor, Gregory, knew that
the respondent, Wright, and the members of his family, as well as others, passed through the
gate and across the field to the Wright ranch, but this fact does not even raise a presumption
that the act of the respondents in passing across the field was hostile or under claim of right.
(Tarpey v. Veith, 22 Cal. App. 289, 134 Pac. 367.)
A right of way by prescription can only be acquired by a user which is neither expressly
nor impliedly licensed or permissive. It must be adverse and hostile to the owner of the
servient estate, and must be under a claim of right so expressed as to charge the owner of
the servient estate with knowledge thereof.
38 Nev. 25, 34 (1914) Howard v. Wright
owner of the servient estate, and must be under a claim of right so expressed as to charge the
owner of the servient estate with knowledge thereof. (Tarpey v. Veith, supra; Bowman v. Lee,
48 Mo. 335; Heckescher v. Cooper, 203 Mo. 278, 101 S. W. 658; Clay v. Penzel, 79 Ark. 5,
94 S. W. 705.)
User alone, says the Supreme Court of California in the very recent case of Tarpey v.
Veith, supra, is not sufficient to establish a prescriptive right of way over lands of another.
Such user must be accompanied by a claim of right communicated to the owner of the land,
or it must be shown that the user was so continuous and so openly and notoriously adverse to
the owner as to create a presumptive knowledge in the owner that the person using the land
was doing so under a claim of right. (Jones on Easements, sec. 266.)
In the case of Tarpey v. Veith, supra, the Supreme Court of California quoted approvingly
from the case of Dexter v. Street, 117 Ill. 532, 6 N. E. 506, wherein that court held: The use
must have been enjoyed under such circumstances as will indicate that it has been claimed as
a right, and has not been regarded by the parties merely as a privilege revocable at the
pleasure of the owner of the soil.
There is nothing in this case, so far as the record discloses, that even indicates an act on
the part of the respondent, or the members of his family, from which act a claim of right
might have been inferred by appellants. As disclosed by the testimony of both appellants and
respondents, and by the testimony of the members of their respective families, a most cordial
and neighborly feeling existed from the early pioneer days until the commencement of this
suit. The neighborly feeling was reciprocal. Friendly visits appear to have taken place
between the members of the respective families. In fact, as appears from the record, the entire
community, during the time at which others, namely, Barney Clow, Hank Smith, Glenn
Savage, and Grove Holcomb, resided there, together with appellants and respondents, appears
to have been one of most reciprocal neighborly spirit, in which the respective parties
passed through the inclosures and over the fields of their neighbors on occasions when it
suited their pleasure of convenience, either for interchange of courtesies, or on business.
38 Nev. 25, 35 (1914) Howard v. Wright
been one of most reciprocal neighborly spirit, in which the respective parties passed through
the inclosures and over the fields of their neighbors on occasions when it suited their pleasure
of convenience, either for interchange of courtesies, or on business.
[5] The road in question across the Howard field, and the gates at both termini were used
more or less generally by those living in the vicinity, and were also used by the appellant
Howard on occasions when she saw fit to visit respondents. The recognized rule of law is that
where the owner of the land over which the way is claimed also uses such way, no adverse
right can exist. (Wood v. Reed, 30 N. Y. Supp. 112; Reid v. Garnett, 101 Va. 47, 43 S. E.
182; Williams v. Kuykendall, 151 S. W. 629.)
[6] The gate, leading from the Howard field into the Virginia road, was, according to the
record, placed there by Gregory, one of the predecessors of the appellant Howard, and there is
nothing in the record, as we find it, that would indicate that the placing of the gate at that
particular point was for any other purpose than that testified to by Gregory, namely, for his
own use in entering the field. This gate was at the west terminus of what is declared by the
respondents to be their right of way, but, as we view it, no way would ever have existed
across the Howard field at that particular place had it not been for the placing of the gate there
by Gregory. Gregory placed the gate there and Gregory and his successors in interest, the
appellants herein, maintained the gate at that place, and, so far as we can determine from the
record, the gate is still maintained at that place by appellants.
In our judgment, the fact that the appellants, or their predecessors, construed and
maintained a gate on the west line of their field in no wise indicates a surrender or
acquiescence on their part. On the contrary, all the facts surrounding the placing of the gate
and its maintenance evidence a different attitude. (Scheller v. Pierce County, 55 Wash. 298,
104 Pac 277; Schulenbarger v. Johnstone, 64 Wash. 202, 116 Pac. 843, 35 L. R. A. n. s. 941.)
38 Nev. 25, 36 (1914) Howard v. Wright
In the case last cited, the Supreme Court of Washington said: If there are any acts which
indicate the intention of the owner of the soil to reserve the control to himself, like the
erection of a fence and gate, it cannot be said that the intention is established; and the road
does not become a highway however long it may have been used, even beyond the period of
twenty years. Such permissive use, in the absence of any intention to dedicate, is but a mere
license, which may be revoked at the pleasure of the owner.
A general rule, gathered from the decision of courts passing upon this subject, is to the
effect that the leaving of gates or bars across a way will operate to rebut the presumption of
adverse user rather than otherwise.
Some time after the appellants came into possession of the field in question, a barnyard
corral was constructed, and the gate mentioned in the testimony of Gregory became the west
entrance to that corral. This corral and the gate in question were used by the appellants for the
purposes for which such inclosures are constructed. The respondents, on occasions when use
was made of the way across the Howard field, passed through this barnyard, in order to get
out onto the Virginia road. Others who had occasion to visit the Wright ranch also passed
through this gate and barnyard. The principal user of the gate was appellant Howard, using
the barnyard as she did for all general purposes. In our judgment the gate originally placed on
the west line of the Howard field by Gregory, the original owner, and maintained there by
Gregory and his successors in interest, the appellants herein, was as much a part of the
claimed right of way as any other designated place in the field, and unless this passageway,
through the west line fence of the Howard field, was used by respondents openly, notoriously,
and under claim of right adverse to the appellants, we are unable to see how a prescriptive
right to the use of this passageway could be maintained by respondent. In our judgment, the
very fact that this gate was used by appellants as an entrance to their own barnyard
precludes the idea of a prescriptive right in favor of respondents.
38 Nev. 25, 37 (1914) Howard v. Wright
gate was used by appellants as an entrance to their own barnyard precludes the idea of a
prescriptive right in favor of respondents. This is especially true when viewed in the light of
the rule of law that no right of way through the premises of another can be acquired by user of
a way maintained by the owner of the premises for his own convenience. (Wood v. Reed,
supra; Reid v. Garnett, supra.)
In the light of our observations heretofore made the conclusion necessarily follows that the
use of the original gate on the west line of the Howard field by the respondents was a use
acquired by implied permission, and, there being no evidence in the record which would lead
us to believe that the user was ever declared by respondents to be a right, or that any such
contention was ever brought to the knowledge of appellants, or could reasonably have been
inferred by appellants, such user could not and did not ripen into a prescriptive right.
According to the testimony of the respondents, as well as the testimony of appellants, the
respondent, about the year 1890, asked permission of appellant Howard, and obtained her
permission, to make a new gateway some fifteen rods south of the original gateway. The
record discloses that this new gateway has been used from time to time by respondents, and
that since the change respondents have not used the original gateway. It being our conclusion
that the original gateway was used by respondents under implied permission, and that no right
of way was acquired thereby, certainly their rights could not be strengthened by the
permission admittedly given to the use of the new gateway, and the authorities heretofore
cited abundantly support our contention in this respect.
[7] The fact that the respondents constructed and maintained some bridges across natural
and artificial waterways in the Howard field along the general course of the way contended
for, and did some grading and used the way more frequently than others, are not such acts as
necessarily indicate adverse claim of right, when considered in connection with all the other
facts and circumstances in the case.
38 Nev. 25, 38 (1914) Howard v. Wright
considered in connection with all the other facts and circumstances in the case. (Reid v.
Garnett, supra; Long v. Mayberry, 96 Tenn. 378, 36 S. W. 1040.)
It has been held by this court in the case of Chollar-Potosi Mining Co. v. Kennedy, 3 Nev.
361, 93 Am. Dec. 409, that a person assuming to have a right of way and continuously
exercising that right for a period of five years, without consulting the owner of the soil or
asking his permission, must be considered as holding adversely. This presumption, however,
does not prevail where the circumstances are such as to show that the user was by permission.
(Bruner Granitoid Co. v. Glencoe Co., 169 Mo. App. 295, 152 S. W. 601.)
[8-9] Moreover, the presumption of a right arising from the unexplained use of a way over
the land of another for a period of five years in negatived by proof showing that the claimant
used the way in question in common with others. Where the owner of premises uses a way,
its enjoyment and use by another in common with the public generally must be regarded as
being by permission and under an implied license, and not adverse, unless there be some
decisive act on the part of that other to indicate a separate and exclusive use under claim of
right. (Reid v. Garnett, supra.)
The entire record, in this case relied upon by respondents to establish a right of way
through the premises of appellant, typifies the general conditions and the general attitude of
the pioneer of this section. To our mind it shows nothing more than the usual neighborly
accommodation where, for convenience, one neighbor uses the premises of another and, in
the spirit of hospitality, the other either welcomes him or remains silent. To apply to these
conditions either adverse intent on the part of the user, or acquiescence to the extent of
recognizing a right on the part of the one whose premises are used, would be to put a penalty
upon generosity and destroy the neighborly spirit wholesome to such communities.
It follows that the judgment of the trial court and the order denying a new trial must be
reversed and the case remanded.
38 Nev. 25, 39 (1914) Howard v. Wright
order denying a new trial must be reversed and the case remanded.
It is so ordered.
____________
38 Nev. 39, 39 (1914) State v. Boerlin.
[No. 2158]
STATE OF NEVADA, Ex Rel. NEVADA TAX COMMISSION, Relator, v. HENRY
BOERLIN, Et Al., As County Commissioners of Esmeralda County, Respondents.
[144 Pac. 738]
1. TaxationLevyStatutesPower of Tax Commission.
Stats. 1913, c. 134, creating the Nevada Tax Commission, and empowering it to exercise general
supervision and control over the entire revenue system of the state, with special enumerated powers,
including the power to advise and direct assessors, sheriffs, and county boards of equalization, and also
providing that the enumeration of the special powers shall not exclude the commissioners of any needful
and proper power, does not empower the commission to order a board of county commissioners to reduce
its rate of county taxation after the commission has increased the valuation.
2. StatutesConstructionIntention of Legislature.
The intention of the legislature, when not in conflict with the constitution, is to govern in the construction
of statutes.
3. StatutesImplied RepealSpecial Statute.
In the absence of a clear showing, the repeal or modification of a statute is not presumed, and, when there
is a general and special statutory provision relating to the same subject, the special provision will control.
4. Constitutional LawDetermination of Constitutional QuestionsNecessity.
The court does not determine constitutional questions, when such determination is not necessary for the
decision of the case.
Original Proceeding. Petition for mandamus by the State of Nevada, upon the relation of J.
F. Shaughnessy and others, constituting the Nevada Tax Commission, against Henry Boerlin
and others, as the Board of County Commissioners of Esmeralda County. Petition denied.
Geo. B. Thatcher, Attorney-General, for Petitioners.
M. A. Diskin, District Attorney, for Respondents.
38 Nev. 39, 40 (1914) State v. Boerlin.
By the Court, Talbot, C. J.:
This is an application by petitioners, as Nevada Tax Commission, for a writ of mandamus
commanding respondents, Boerlin, Cable, and O'Keefe, as county commissioners, to reduce
the tax rate of Esmeralda County from $1.55 to $1.16 on each $100 of assessed valuation, as
ordered by petitioners, and commanding the respondent Johnson, as county auditor, to extend
the taxes upon the roll of that county accordingly.
[1] The Nevada Tax Commission was created under an act of the last legislature (Stats.
1913, p. 175), which provides that it shall be composed of the first associate commissioner of
the state railroad commission and two other persons to be appointed by the governor, with the
consent and advice of the senate. Regarding the powers of the commission the act provides:
Sec. 4. Said Nevada Tax Commission, hereinafter and heretofore referred to as said
commission,' is hereby empowered to exercise general supervision and control over the entire
revenue system of the state; and in pursuance whereof shall possess the following special
powers:
First: To confer with, advise and direct assessors, sheriffs (as ex officio collectors of
licenses), and county boards of equalization, as to their duties, and to direct what proceedings,
actions or prosecutions shall be instituted to support the law. And in pursuance whereof said
commission may call upon the district attorney of any county, or the attorney-general, to
institute and conduct such civil or criminal proceedings as may be demanded;
Second: To have original power of appraisement and assessment of all property
mentioned in section 5 of this act;
Third: To have final powers (other than the courts) to equalize property valuations as
provided in sections 6 of this act;
Fourth: To establish and prescribe general and uniform rules and regulations governing
the assessment of property by the assessors of the various counties, not in conflict with law;
to prescribe the form and manner in which assessment rolls or tax lists shall be kept by
assessors {and county commissioners shall supply books for the use of assessors in such
form), and also to prescribe the form of the statements of property owners in making
returns of their property; and it is hereby made the duty of all county assessors to adopt
and put in practice such rules and regulations and to use and adopt such form and
manner of keeping such assessment rolls or tax lists, and to use and require such
property owners to use the blank statements required by said commission in making their
property returns;
38 Nev. 39, 41 (1914) State v. Boerlin.
(and county commissioners shall supply books for the use of assessors in such form), and also
to prescribe the form of the statements of property owners in making returns of their property;
and it is hereby made the duty of all county assessors to adopt and put in practice such rules
and regulations and to use and adopt such form and manner of keeping such assessment rolls
or tax lists, and to use and require such property owners to use the blank statements required
by said commission in making their property returns;
Fifth: To require assessors, sheriffs (as ex officio collectors of licenses) and the clerks of
county boards of equalization to furnish such information in relation to assessments, licenses
or the equalization of property valuations as said commission may demand.
(The sixth, seventh, and eighth subdivisions of the section relate to obtaining testimony,
making investigations regarding property, and enforcing any direct or collateral inheritance
law.)
The enumeration of the said foregoing eight special powers shall not be construed as
excluding the exercise of any needful and proper power and authority of said commission, in
the exercise of its general supervision and control over the entire revenue system of the state
not in conflict with law.
On properties in different counties, throughout the state, the Nevada Tax Commission, as
the final state board of equalization, at its session commencing on the second Monday in
October, 1914, made increases in valuations amounting to many millions of dollars. The
valuations in Esmeralda County were increased over $2,000,000, or about 50 per cent.
Last April the respondent commissioners prepared a budget, by which they estimated the
amount required to pay the expenses of conducting the public business of Esmeralda County
for the ensuing year at $90,109.76, and as the county tax rate fixed 5 cents for interest and
sinking fund, 30 cents for county schools, and $1.20 for general county purposes, making a
total of $1.55 for each $100 of assessed valuation.
38 Nev. 39, 42 (1914) State v. Boerlin.
On or about the 20th day of November, 1914, the petitioners ordered respondent Johnson,
as auditor of Esmeralda County, to extend upon the assessment roll the increased valuation
assessment, and, in view of such increased assessment, ordered the board of county
commissioners to reduce the tax rate for county purposes from $1.55 to $1.16 on each $100
of assessed valuation. The respondents have accepted the increase so made in valuation.
At the meeting of the board of county commissioners on November 23, 1915, the county
treasurer reported that through inadvertence the amount required for the county schools had
not been included in the budget, but, to provide for the same, a tax of 30 cents had been fixed
by the board; that for lack of funds it was impossible to allow bills for salaries and other
expenses for the month of October; that all the funds were depleted; that interest-bearing
warrants were being issued for teachers' salaries; that on December 1, 1914, the county
liabilities would amount to approximately $17,000; and that the expenses of the county
exceeded the budget in that sum. The board estimated that the tax levy made by it in April
would raise only sufficient revenue on the increased valuation to meet the requirements of the
county for the current year, and ordered that the tax rate of $1.55, as previously made by the
board, be collected, and the auditor was instructed to extend and deliver to the county
treasurer the tax roll accordingly.
As respondents are obeying the order of petitioners increasing the valuations, the only
question necessarily involved is whether the Nevada Tax Commission is authorized by the
statute to order the board of county commissioners to reduce the rate of $1.55, fixed by them,
to $1.16, as ordered by the commission.
An act passed in 1891 (Rev. Laws, sec. 3818) provided:
That if, after the equalization of taxes in the several counties of this state, it shall appear that
the levy previously made by the board of county commissioners of any county of this state for
county purposes will result in the collection of a revenue, either in excess or a deficiency of
the requirements of such county for the current year, then, and in such event, the board
of county commissioners in any such county shall have the power, and it is hereby made
the duty of such board of county commissioners, to immediately meet and either reduce
or raise the rate of taxation, so previously levied, to such a sum as such board in its
judgment may consider sufficient to insure the collection of such an amount of revenue as
will answer all the requirements of such county for such current year."
38 Nev. 39, 43 (1914) State v. Boerlin.
collection of a revenue, either in excess or a deficiency of the requirements of such county for
the current year, then, and in such event, the board of county commissioners in any such
county shall have the power, and it is hereby made the duty of such board of county
commissioners, to immediately meet and either reduce or raise the rate of taxation, so
previously levied, to such a sum as such board in its judgment may consider sufficient to
insure the collection of such an amount of revenue as will answer all the requirements of such
county for such current year.
In an act passed in 1903 (Rev. Laws, sec. 3827), section 2, applicable to Esmeralda
County, provided that the tax rate for the year 1905 for county purposes, exclusive of the tax
to pay the interest and maintain the sinking fund applicable to bonded indebtedness, should
be 5 cents lower on each $100 of assessed valuation than the tax rate for such county
purposes in 1904; that thereafter such tax rate should be diminished annually at the rate of not
less than 5 cents on each $100 of assessed valuation until it reached $1.50 on the $100 of
assessed valuation, and thereafter should be reduced annually at the rate of 2 1/2 cents on the
$100 of assessed valuation until it reached 70 cents on the $100 of assessed valuation; and
that thereafter the permanent limitation of taxation for such county purposes, exclusive of tax
to pay the interest and maintain the sinking fund, should be 70 cents on each $100 of assessed
valuation.
In the answer it is alleged that the board fixed the tax rate of $1.20 in April, in compliance
with the last mentioned act of the legislature. As the board has not attempted to raise or lower
the rate so fixed, any question as to whether they may increase or decrease the rate under the
act of 1891 is not material if the tax commission is not authorized to increase or decrease the
rates or to order the board to reduce the rate fixed by the board. The first subdivision of
section 4, quoted above, of the act creating the Nevada Tax Commission states that they are
to confer with, advise and direct assessors, sheriffs {as ex officio collectors of licenses),
and county boards of equalization, as to their duties."
38 Nev. 39, 44 (1914) State v. Boerlin.
sheriffs (as ex officio collectors of licenses), and county boards of equalization, as to their
duties. The language in other parts of that section is broad enough to amplify the powers of
the commission in regard to valuations. While, as indicated, the act does provide that the
commission may direct county boards of equalization, assessors, and sheriffs as to their
duties, it nowhere specifically provides that the commission may direct boards of county
commissioners in regard to fixing or changing rates, or otherwise. The commission is not
authorized to make any direction or order for the reduction of the rate fixed by the board,
unless under the language of the act which states that the commission is hereby empowered
to exercise general supervision and control over the entire revenue system of the state,
without giving any limitation to these words by the ones following, and in pursuance
whereof shall possess the following special powers. If, by being empowered to exercise
general supervision and control over the entire revenue system of the state, it may be
assumed that the county revenue systems are included, and further considered that the
commission may raise or lower the county rate or order the board of county commissioners to
increase or decrease such rate when there is no specific provision of law so stating, it would
have to be admitted that, under such general language, the commission would be empowered
to fix, raise, or lower the state rate.
[2] As held in numerous cases, including Mighels v. Eggers, 36 Nev. 364, 136 Pac. 104,
State v. Ross, 20 Nev. 61, 14 Pac. 827, Maynard v. Newman, 1 Nev. 271, and Thorpe v.
Schooling, 7 Nev. 15, it is a common rule of construction that, when not in conflict with the
constitution, the intention of the legislature is to govern in the construction of statutes. It is
not apparent that, by the use of the language quoted in reference to the exercise of general
supervision and control over the revenue system of the state, the legislature intended to repeal
or modify the acts fixing the state rate and providing for the fixing of county rates by the
boards of county commissioners, or to empower the commission to make final adjustment
of county tax rates after they had been fixed by the county boards.
38 Nev. 39, 45 (1914) State v. Boerlin.
or to empower the commission to make final adjustment of county tax rates after they had
been fixed by the county boards.
The provision in the act that the commission may direct assessors and sheriffs, as
collectors of licenses, as to their duties, indicates that, if the legislature had intended to confer
so important a function upon the commission as the increasing or decreasing of the county
rate after it had been fixed by the county commissioners, it would have specified this power,
as it did in relation to others of less importance. The same inference may be drawn from the
fact that the language of the statute states that the commission may direct county boards of
equalization as to their duties, and that the county commissioners shall supply books with
forms for assessment as prescribed by the commission, but nowhere states that the
commission may direct boards of county commissioners or order a reduction of the county
rate. In the construction of a statute in which certain things are enumerated, other things are to
be excluded. (In Re Bailey's Estate, 31 Nev. 377, 103 Pac. 232, Ann. Cas. 1912a, 743.)
[3] In the absence of a clear showing, the repeal or modification of statutes is not
presumed, and, when there is a general and special statutory provision relating to the same
subject, the special provision will control. (State v. Ducker, 35 Nev. 214, 127 Pac. 990; State
v. LaGrave, 23 Nev. 373, 48 Pac. 193, 674; State v. Donnelly, 20 Nev. 214, 19 Pac. 680;
State v. Hamilton, 33 Nev. 418, 111 Pac. 1026.)
After largely increasing the valuations, it is natural and laudable for the tax commission to
seek to have the rate reduced, so that an amount of taxes will not be collected from property
owners largely in excess of the needs of the county. But under the act of 1891 the power of
reducing or increasing a rate, so that under the valuation only sufficient money will be
collected to meet the needs of the county, is placed with the board of commissioners, whose
duty it is to exercise due care for the protection of the taxpayers, and lower the rate if it will
yield more revenue than is necessary to meet the expenses and obligations of the county
under economical management.
38 Nev. 39, 46 (1914) State v. Boerlin.
revenue than is necessary to meet the expenses and obligations of the county under
economical management.
[4] It has been urged that under the constitution the legislature could not confer upon the
commission power to fix the tax rate because the commission is composed of members
appointed and not elected by the people. Following precedent, the court does not determine
constitutional questions when unnecessary for a decision of the case.
The application for the writ is denied.
____________
38 Nev. 46, 46 (1914) Dillon v. Grutt
[No. 2102]
DILLON & WEST, Incorporated, Respondents, v. EUGENE GRUTT, As Sheriff of Mineral
County, and NELSON POLI, Appellants.
[144 PAC. 741]
1. SalesConditional SalesTitle of Buyer.
Under a conditional sale contract which stipulates that the chattels shall remain the property of the seller
until paid for, title does not pass to the buyer obtaining and retaining possession, but not paying the price.
2. SalesConditional SalesRights of Assignee of Seller.
Where a seller in a conditional sale contract reserving title until the price was paid assigned the contract,
the assignee succeeded to the rights of ownership of the seller until the price was paid.
3. SalesConditional SalesRetention of Title Until Payment of PricePerformance.
A conditional contract for the sale of mining machinery bound the buyer to deposit with a third person all
bullion extracted from his mining properties until the price was paid, and provided that the title should
remain in the seller until the price was paid. The buyer deposited bullion in excess of the price, under an
agreement that the third person should apply the same in payment of labor claims, royalties on ore
produced, and supplies furnished to the buyer for the operation of the property. Held, that the deposit of the
bullion was not a payment of the price because the original contract was modified by the subsequent
agreement.
38 Nev. 46, 47 (1914) Dillon v. Grutt
4. SalesConditional SalesReservation of TitleSubsequent Agreements.
A conditional contract of sale which reserved the title in the seller until the price was paid was assigned
by the seller, and thereafter the buyer gave a chattel mortgage of corporate stock to secure the price and for
other claims due the assignee. The mortgage recited that the buyer had possession, but no title. Attached to
the mortgage was an exhibit of the original contract which was also made a part of the mortgage. Held, that
the mortgage reserved the title as against an execution creditor of the buyer.
5. SalesConditional SalesReservation of TitleSubsequent Agreements.
A conditional sale contract of mining machinery stipulated that the title should remain in the seller until
the price was paid, and recited that the buyer had deposited 50,000 shares of the capital stock as security.
The seller assigned the contract and thereafter the buyer executed to the assignee a chattel mortgage on
71,000 shares of stock including the 50,000 shares as security for the payment of the price and other debts
due him. The mortgage expressly recognized that the conditional sale was in force and that the title
remained vested in the assignee. Held, that the mortgage did not operate as a waiver of the original
conditional sale, and the assignee was not bound to exhaust his mortgage security before asserting title to
the machinery to recover the price as against an execution creditor of the buyer levying on the machinery.
6. ReplevinDamagesEvidence.
Where, in replevin, there was no proof that the property had any rental value or that the plaintiff had
sustained any special damage because deprived of its use, a judgment for plaintiff should be for the value
of the property, with interest thereon from the date of its wrongful seizure until the date of the judgment.
7. ReplevinAttorney's Fees and Expenses.
A plaintiff in replevin who obtains a judgment is not entitled to recover attorney's fees or expenses
incidental to the action other than the costs properly accruing to the prevailing party in any action.
Appeal from Seventh Judicial District Court, Mineral County; Peter J. Somers, Judge.
Action by Dillon & West, Incorporated, against Eugene Grutt, as Sheriff of Mineral
County, Nevada, and another. From a judgment for plaintiff, the defendants appeal. Modified
and affirmed.
Mack & Green, for Appellants.
E. E. Hull, for Respondent.
38 Nev. 46, 48 (1914) Dillon v. Grutt
By the Court, Norcross, J.:
This is a suit in claim and delivery of personal property for the recovery of certain mining
machinery and equipment in the possession of the appellant Eugene Grutt, as sheriff of
Mineral County, by virtue of an execution issued in a certain civil action wherein the
appellant Nelson Poli was plaintiff and one L. H. Bartholomew was defendant. Judgment for
the return of the property and for $250 damages was rendered in favor of the plaintiff,
respondent herein. From the judgment and from an order denying a motion for a new trial,
defendant has appealed.
From the proceedings and record in the case it appears that on or about December 21,
1909, the said L. H. Bartholomew received from the Nevada Engineering Works, Roy &
Bride, lessees, the machinery in question in the action under the terms and conditions of the
following written agreement:
Reno, Nevada, December 21st, 1909.
Nevada Engineering Works, Roy & Bride, lessees, hereby agree to deliver to L. H.
Bartholomew, * * * The following mining machinery and equipment, to wit: [Here follows
description of the property in question.]
Mr. L. Bartholomew agrees to pay for the above mentioned machinery the sum of one
thousand three hundred and forty-seven dollars ($1,347.00), when delivered f. o. b. cars or as
soon thereafter as possible.
It is understood and agreed between both parties hereto that the said L. Bartholomew
shall deposit with Dillon & West, Inc., of Yerington, all bullion of whatever nature of kind
that may be extracted from the mining properties of the said L. H. Bartholomew until the full
amount of $1,347.00 has been paid in full, provided, however, that in event the payment in
full be made by or before the 1st of March, 1909, a discount of 10% (ten per cent) will be
allowed.
It is understood and agreed that the above mentioned machinery shall remain the property
of the Nevada Engineering Works, Roy & Bride, lessees, until paid for in full.
38 Nev. 46, 49 (1914) Dillon v. Grutt
L. Bartholomew as a surety of his proper performance of the terms of this contract will
deposit with the Nevada Engineering Works, Roy & Bride, lessees, 50,000 shares of the
capital stock of the Northern Light Copper Co., which said stock may be sold for the account
of the said Nevada Engineering Works, Roy & Bride, lessees, if the said sum of $1,347.00 be
not paid in full within six months from date hereof.
Following the delivery of the property in question to the said L. Bartholomew, the latter
deposited with Dillon & West, Inc. during the year 1910, bullion upon the dates and of the
value following:
April 13.................................................................................................. $326.51
April 23.................................................................................................. 258.13
May 4...................................................................................................... 404.97
May 18.................................................................................................... 364.26
May 27.................................................................................................... 180.11
June 11.................................................................................................... 324.87
June 27.................................................................................................... 353.66
July 19.................................................................................................... 626.40
Oct. 4...................................................................................................... 485.72
Nov. 4.................................................................................................... 455.92
Total...................................................................................................... $3,770.55
It is one of the contentions of appellants that the first four deposits of bullion mention
supra, aggregating in value $1,353.87, being an amount greater than the purchase price of the
machinery in question by the terms of the contract, vested title thereto in the said
Bartholomew. It appears from the evidence, however, that when deposits of bullion were
made with Dillon & West by the said Bartholomew the latter requested that the amount
derived from the bullion be applied in payment of labor claims, royalties on ore produced,
and supplies furnished to Bartholomew for the operation of his mining property. It appears
that Bartholomew was without means other than that derived from the sale of bullion and that
in order to carry on his mining operations it was necessary that he obtain a large portion of the
amount derived from the sale of bullion to apply upon his other indebtedness. Dillon & West
advised the Nevada Engineering Works, Roy & Bride, lessees, of this situation and it clearly
appears from the evidence that they consented to the diversion of the money derived
from the sales of bullion to the liquidation of other liabilities of Bartholomew rather than
their own.
38 Nev. 46, 50 (1914) Dillon v. Grutt
appears from the evidence that they consented to the diversion of the money derived from the
sales of bullion to the liquidation of other liabilities of Bartholomew rather than their own. Of
the total amount received from the bullion deposited with Dillon & West only the sum of
$425 was remitted to the Nevada Engineering Works and applied in discharge of the contract
price of the machinery furnished.
At the time of the delivery of the machinery to Bartholomew by the Nevada Engineering
Works Bartholomew was quite largely indebted to Dillon & West, and subsequently
purchased a considerable amount of supplies from the latter.
On August 18, 1910, the Nevada Engineering Works sent to Dillon & West, and also to
Bartholomew, a statement of Bartholomew's account showing a balance unpaid upon the
machinery delivered amounting to $992.34, being the same amount stated in the mortgage
hereinafter mentioned executed by the said Bartholomew to Dillon & West on November 5,
1910. In September, 1910, the Nevada Engineering Works, Roy & Bride, lessees, sold and
assigned to Dillon & West all of its and their rights, title, and interest in and to the contract
for the sale of the machinery in question for the balance then due upon the purchase price,
viz, $992.34, less a commission of 5 per cent, and Dillon & West paid for the same with its
notes executed in September, 1910, which were thereafter paid at maturity. The formal
written assignment, however, was not executed until December 20, 1910. The stock
mentioned in the agreement which Bartholomew deposited with the Nevada Engineering
Works, as a surety of his proper performance of the terms of sale of the machinery, was by
the Nevada Engineering Works also turned over to Dillon & West, who then had the stock
transferred to its own name upon the books of the Northern Light Copper Company as
security for the payment to be made under the contract for the machinery. Bartholomew had
also transferred to Dillon & West a further block of 21,000 shares of the capital stock of the
copper company as security for the payment of an item of $2,063.46 due to Dillon & West
from him on account of goods, wares, and merchandise purchased from Dillon & West by
Bartholomew and other demands against the latter which had been assigned to Dillon &
West.
38 Nev. 46, 51 (1914) Dillon v. Grutt
of $2,063.46 due to Dillon & West from him on account of goods, wares, and merchandise
purchased from Dillon & West by Bartholomew and other demands against the latter which
had been assigned to Dillon & West. All of which stock, 71,000 shares, was held by Dillon &
West at the date of the last deposit of bullion made by Bartholomew as security for the
payment of the balance due upon the purchase price of the machinery and the store account.
Upon November 5, 1910, the said Bartholomew executed and delivered to Dillon & West
a chattel mortgage on the said 71,000 shares of stock to secure the payment of $3,055.80, the
total amount of the indebtedness of Bartholomew to Dillon & West. Attached to the mortgage
as an exhibit and made a part thereof was a copy of the original agreement between
Bartholomew and the Nevada Engineering Works, Roy & Bride, lessees. The mortgage
continued the following recitals:
And, whereas, said machinery was delivered to said L. Bartholomew in accordance with
the terms of said agreement and ever since said delivery said machinery has been, and is now,
in the possession of said L. Bartholomew; but no title, thereto, other than to the possession
thereof under the terms of said agreement, has, or can, vest in said L. Bartholomew until
payment of the full purchase price thereof has been made, which purchase price was and is
the sum of one thousand three hundred and forty-seven ($1,347.00) dollars;
And, whereas, said Nevada Engineering Works, Roy & Bride, lessees, has assigned and
transferred to second party hereto, all of its and their right, title and interest in and to said
agreement, and the balance of moneys due thereunder, together with all of their right, title and
interest in and to said machinery, and second party is now the owner and holder thereof, and
is entitled to payment of the balance of said purchase price set forth in said agreement so
assigned, which balance of purchase price is the sum of nine hundred ninety-two and 34/100
($992.34) dollars, no part of which balance has been paid.
The 71,000 shares of stock so mortgaged included the 50,000 shares of stock originally
transferred as security for the payment of the purchase price of the machinery in
question.
38 Nev. 46, 52 (1914) Dillon v. Grutt
50,000 shares of stock originally transferred as security for the payment of the purchase price
of the machinery in question.
The mortgage note was made payable January 5, 1911. Four days after maturity of the
mortgage note, no payment having been made thereon, Dillon & West decided to take
possession of the machinery and credit Bartholomew on his note with the balance of the
purchase price still due, together with a small amount of interest accrued thereon.
Accordingly, they wrote him a letter upon January 9, 1911, telling him to leave the mill where
it then was and they would credit him with $1,000 upon his note. After receiving this letter
Bartholomew called at Dillon & West's store at Yerington and stated that he had left the mill
where it stood. Upon the 15th day of March, 1911, Dillon & West wrote a letter to
Bartholomew containing a statement of his account as it then stood and showing a credit upon
January 16, 1911, of $1,000 on account of taking over the mill and machinery by Dillon &
West. This letter was received by Bartholomew about the time of its date. No reply to this
letter was made by Bartholomew. Upon February 4, 1911, an action was instituted in the First
judicial district court in and for the county of Lyon by the appellant Nelson Poli against
Bartholomew, in which action a writ of attachment was issued, claimed by counsel for
respondent to have been improvidently issued and void because of certain alleged defects, not
necessary, we think, to be considered. Thereafter in said case the defendant Bartholomew
confessed judgment in favor of the plaintiff Poli. Execution was thereupon issued upon said
judgment and levied by appellant Grutt as sheriff of Mineral County.
Counsel for appellant base their contention for a reversal of this case substantially upon
the following grounds:
1. That there was no sale or delivery of the mill by Bartholomew to Dillon & West and no
actual and continued change of possession.
38 Nev. 46, 53 (1914) Dillon v. Grutt
2. That the only condition imposed upon the sale from the vendor to the vendee was a
reservation of the title of the mill until the purchase price was paid by depositing bullion with
Dillon & West, the agent of the conditional vendor, as provided in the contract. That on May
18, 1910, this condition had been fully performed by the deposit of the sum of $1,353.87 with
Dillon & West and the title had vested in the vendee.
3. That the mortgage of November 5, 1910, was made to secure the purchase price of the
mill and to secure other debts and by it there was mortgaged new and additional securities.
That this mortgage contains no express reservation of the title of the mill, and constitutes a
waiver of the original condition of the sale.
4. Dillon & West, having on November 5, 1910, taken a mortgage on 71,000 shares of the
capital stock of the Northern Light Copper Company to secure payment of the purchase price
of the mill, had no other remedy than to foreclose mortgage and have a deficiency decreed by
the court before it could secure any other remedy against the debtor.
5. That the evidence is insufficient to support a judgment for damages in the case.
There is no merit in appellant's first contention, stated supra. No question of a sale of
chattels without delivery of possession is involved in this case.
[1] Under the conditional sale agreement between Bartholomew and the Nevada
Engineering Works, Roy & Bride, lessees, title to the mill machinery did not pass to
Bartholomew. (Cardinal v. Edwards, 5 Nev. 36; Central Loan and Trust Co. v. Campbell
Co., 5 Okl. 412, 49 Pac. 53; Russell v. Harkness, 4 Utah, 206, 7 Pac. 869; Rodgers v.
Bachman, 109 Cal. 555, 42 Pac. 448; Lundy Furniture Co. v. White, 128 Cal. 170, 60 Pac.
759, 79 Am. St. Rep. 41; Kellogg v. Burr, 126 Cal. 41, 58 Pac. 306.)
[2] By the assignment to Dillon & West of the original contract between the engineering
works and Bartholomew, Dillon & West succeeded to the rights of ownership of the original
vendors. (Barton v. Groseclose, 11 Idaho, 227, S1 Pac.
38 Nev. 46, 54 (1914) Dillon v. Grutt
Idaho, 227, 81 Pac. 623; Kimball Co. v. Mellon, 80 Wis. 133, 48 N. W. 1100; 6 Am. & Eng.
Enc. of Law, 2d. ed. 485.)
[3] The deposits of bullion made by Bartholomew with Dillon & West, while exceeding in
value the purchase price of the machinery, cannot be regarded as payment thereof, because
the terms of the original agreement were modified by the subsequent agreement of the parties.
[4] The contention that the mortgage of November 5, 1910, contains no express
reservation of the title of the mill machinery in Dillon & West is without merit. The language
of that instrument is susceptible of no other construction.
[5] The same may also be said in reference to the contention that the mortgage gave new
and additional security for the balance due for the machinery. True, 71,000 shares of stock
were mortgaged for the entire indebtedness of Bartholomew to Dillon & West, but this
amount of stock included 50,000 shares previously held as security for the purchase price of
the machinery. In effect, this security for the machinery debt was reduced nearly one-half.
The mortgage did not operate, as contended, as a waiver of the original conditional sale, but,
upon the contrary, the mortgage expressly recognized that the conditional sale was still in
force and the title still vested in Dillon & West. Under these circumstances Dillon & West
were not bound to exhaust their mortgage security before asserting title to the machinery, for
they never parted with such title.
[6-7] There was no allegation or proof of special damage due to the detention of the
property involved in the action. The only evidence on the question of damages was the
following:
Dillon & West, Inc., have been damaged by reason of the taking of possession of the
property involved in this action by the defendants and of being deprived of its possession and
use and by reason of being obliged to bring this action to recover its possession, expenses
incident to this action for its recovery, payment of attorney's fees, etc., about four
hundred dollars."
38 Nev. 46, 55 (1914) Dillon v. Grutt
dent to this action for its recovery, payment of attorney's fees, etc., about four hundred
dollars.
This evidence was admitted over defendants' objection and exception. It will be seen that
there was no proof that the property had any rental value or that the plaintiff was occasioned
any special damage because deprived of the use of the property. There is no statutory or other
warrant for allowing attorney's fees or the expenses incident to the action other than the costs
that would properly accrue to the prevailing party in any action.
Unless the property in suit has a usable value and damages are estimated on that basis, the
prevailing party in replevin will be awarded interest on the value of the property during the
time of the wrongful detention; and in the absence of facts which would authorize the
application of any different rule, as for instance depreciation in the value of the property, or
bad faith, fraud, malice, gross negligence, or oppression on the part of the adverse party, or a
special agreement between the parties that the jury might find the value of the property and
the damages in one sum, such interest constitutes the measure of damages. (34 Cyc. p.
1560.)
The alleged value of the property in controversy is $1,000. Interest on the value of the
property at the legal rate from February 10, 1911, the date of seizure under the attachment, to
May 20, 1912, the date of the judgment, would be $88.95.
The judgment for damages will be modified by reducing the same to the amount of $88.95,
and as so modified, the judgment for damages and for the return of the property is affirmed.
____________
38 Nev. 56, 56 (1914) McBride v. Griswold
[No. 2159]
A. G. McBRIDE, Petitioner, v. ISAAC GRISWOLD, Et Al., as County Commissioners of
Elko County, and W. W. BOOHER, Respondents.
[146 Pac. 756]
1. ElectionsContestsBoard of County CommissionersStatute.
Rev. Laws, sec. 1513, providing for recount of votes by the board of county commissioners, was not
repealed by Stats. 1913, c. 284, the general election law, under Const. art. 4, sec. 21, providing that,
where a general law can be made applicable, all laws shall be general and uniform in operation; since a
general statute will not repeal particular provisions of a former act unless the two conflict irreconcilably.
2. StatutesPublic OfficersConstitutionalityTitle.
Under Const. art. 4, sec. 17, providing that each law enacted shall embrace but one subject, which
shall be briefly expressed in the title, Rev. Laws, sec. 1513, which is section 13 of an act entitled An act to
create a board of county commissioners in the several counties of the state, and to define their duties and
powers, and establishing the duties of boards of county commissioners as election officers, was
constitutional.
3. Constitutional LawElectionsElection ContestsDepartments of
Govern-mentJudiciary.
Rev. Laws. sec. 1513, defining the election duties of boards of county commissioners, providing for
recounts by them, is not void as vesting judicial powers in such board.
4. ElectionsContestRecountStatute.
Under Rev. Laws, sec. 1513, defining election duties of boards of county commissioners, such a board
may reconvene after adjournment as a board of canvassers to conduct a recount, even in the absence of
express authority in the statute; the imposition of a specific duty always implying power and function to
perform it in a reasonable manner.
5. ProhibitionElection ContestsAction by Boards of County Commissioners.
Where a board of county commissioners has no legal power to act in the matter of an election recount,
writ of prohibition, issuing on petition of presumably successful candidate, is a proper remedy.
6. ElectionsContestsConcurrent RemediesStatutes.
Where various remedies as to election contests were afforded, at common law, under the code of civil
procedure, and the general election law (Stats. 1913, c. 284), and under Rev. Laws, sec. 1513, concerning
the powers of boards of county commissioners in regard to elections, these remedies are concurrent, not
being incompatible, and the party seeking relief may use any.
38 Nev. 56, 57 (1914) McBride v. Griswold
Original Proceeding in prohibition by A. G. McBride against Isaac Griswold and others,
composing the Board of County Commissioners of Elko County, and W. W. Booher, to
prevent an election recount. Writ denied, and alternative writ dismissed.
Klein & Hale, for Petitioner.
Carey Van Fleet and Geo. B. Thatcher, Attorney-General, for Respondent.
By the Court, McCarran, J.:
This is an original proceeding in prohibition, wherein the petitioner seeks to prohibit
respondents Isaac Griswold, J. H. Peck, and Webster Patterson, acting as county
commissioners of Elko County, from hearing, entertaining, passing upon, proceeding with, or
doing anything with reference and respect to a recount of the votes cast at the November
election in Elko County, so far as said votes concern petitioner, as a candidate for the office
of assemblyman from said county, and W. W. Booher, also a candidate for said office.
As appears from the record, respondents, as members of the board of county
commissioners, pursuant to law, met on the 11th day of November, 1914, and canvassed the
vote cast in the several precincts of the county. As a result of said canvass, petitioner was
declared elected to the office of assemblyman by a majority of three votes over W. W.
Booher, candidate for the same office. Respondents, after issuing their order that the
certificate of election be issued to petitioner, adjourned without date.
On the 5th day of December, 1914, W. W. Booher filed in the office of the county clerk of
Elko County his petition in writing, wherein he states that he has reason to believe, and does
believe, that a mistake or mistakes have occurred on the part of the inspectors of election in
the election precincts of Carlin, in the said county of Elko, and on the part of the inspectors of
the other precincts of said county, sufficient to change the result of said election so far as the
said office of assemblyman is concerned; and, further, that he has reason to believe and
does believe that ballots were counted for the said A. G. McBride which should be
rejected; and has reason to believe and does believe that a recount of all the legal and
valid ballots cast in said election in said county will show that the said W. W. Booher
received more votes than the said A. G. McBride.
38 Nev. 56, 58 (1914) McBride v. Griswold
further, that he has reason to believe and does believe that ballots were counted for the said
A. G. McBride which should be rejected; and has reason to believe and does believe that a
recount of all the legal and valid ballots cast in said election in said county will show that the
said W. W. Booher received more votes than the said A. G. McBride. Pursuant to said
declaration, the said W. W. Booher demanded a recount of all the votes cast in the several
precincts of the county; the recount being demanded under the provisions of section 1513 of
the Revised Laws of Nevada. Petitioner seeks by these proceedings to prohibit the board of
county commissioners from recounting pursuant to the petition referred to.
[1] Section 1513 of the Revised Laws of Nevada is section 13 of an act entitled An act to
create a board of county commissioners in the several counties of this state, and to define
their duties and powers.
The portion of the section applicable to this case is as follows:
The board of county commissioners shall also act as a board of canvassers, and declare
election returns, and cause a certificate of election to be given by their clerks to any person
who shall be elected to any legislative, county, or township office within their county; * * *
and, provided further, that when said board of county commissioners shall have canvassed
the vote for legislators, county, and township officers, and it shall appear from such canvass
that any legislator, county, or township officer voted for at such election has received a
majority of ten votes or less, in such case, upon the application of the defeated candidate for
such office, setting forth, under oath, that he has reason to believe, and does believe, that a
mistake or mistakes have occurred on the part of the inspector of election in any election
precinct or precincts in said county sufficient to change the result of such election so far as
said office is concerned, it shall then be the duty of said board of county commissioners to
immediately proceed to recount the ballots for said office of any or all the precincts in said
county wherein any mistake or mistakes are alleged to have occurred, and shall continue
such count from day to day {Sundays excepted), until the votes of all the election
precincts wherein any such mistake or mistakes are alleged to have occurred shall have
been counted, and when said count is completed shall declare the result, and issue the
certificate of election to the party entitled thereto, as determined by their said count, but
they shall in no case be allowed to throw out any ballot upon any alleged defect, if from
the fact of such ballot it can, upon inspection, be ascertained for whom the elector
intended to cast his ballot; and, provided further, that nothing herein contained shall
prevent either party to said proceeding to contest the right to said office in the courts, in
the manner now prescribed by law."
38 Nev. 56, 59 (1914) McBride v. Griswold
any mistake or mistakes are alleged to have occurred, and shall continue such count from day
to day (Sundays excepted), until the votes of all the election precincts wherein any such
mistake or mistakes are alleged to have occurred shall have been counted, and when said
count is completed shall declare the result, and issue the certificate of election to the party
entitled thereto, as determined by their said count, but they shall in no case be allowed to
throw out any ballot upon any alleged defect, if from the fact of such ballot it can, upon
inspection, be ascertained for whom the elector intended to cast his ballot; and, provided
further, that nothing herein contained shall prevent either party to said proceeding to contest
the right to said office in the courts, in the manner now prescribed by law.
It is the contention of petitioner that this section has been repealed by implication,
inasmuch as the legislature of 1913 passed a general election law, entitled An act relating to
elections and removals from office, citing therein Stats. 1913, p. 493, and we are referred to
article 4, section 21, of the constitution, wherein it is declared: In all cases * * * where a
general law can be made applicable, all laws shall be general and of uniform [application and]
operation throughout the state.
It must be observed in this respect, however, that section 1513, Revised Laws, under the
provisions of which the recount is demanded, is a specific statute, not only prescribing certain
powers to be vested in the board of county commissioners, but also prescribing certain duties
to be performed by that body. There is no direct or specific provision or section in the general
election law of 1913 which attempts to meet the conditions, either as to the powers or the
duties of the board of county commissioners, contemplated by section 1513. It is true that the
general election law of 1913 contains certain specific repealing clauses, but none of these
clauses, either directly or inferentially, refer either to section 1513 or its provisions. It cannot,
in our judgment, be successfully contended that section 1513 would be inferentially repealed
by the general election law for repugnance or as being in conflict.
38 Nev. 56, 60 (1914) McBride v. Griswold
by the general election law for repugnance or as being in conflict. Section 1513 is neither
repugnant to any of the provisions of the general election law of 1913, nor is it in conflict
with any specific provision contained in that act. Moreover, the provisions of section 1513
are, in our judgment, not incongruous to the spirit and intent of the general election act of the
last legislature; there being no specific declaration in the general election act on which it
could be even inferred, much less taken as direct, that the intention of the legislature was to
repeal or make nugatory the provisions of section 1513. The rule so often referred to by this
court, and universally adopted, will suffice to settle this phase of the question. The repeal of
statutes, either totally or partially, by implication, is not favored; and a general statute,
without negative words, will not repeal the particular provisions of a former one, unless the
two acts are irreconcilably inconsistent. Moreover, where a later enactment is not repugnant
to a former one, it does not repeal the same by implication. (State v. LaGrave, 23 Nev. 380,
48 Pac. 193, 674; State v. Donnelly, 20 Nev. 218, 19 Pac. 680; State, ex rel. Love, v.
Cosgrove, 85 Neb. 187, 122 N. W. 885, 26 L. R. A. n. s. 216.)
If the intention of the legislature may be gathered from inference, it may be well to
observe, in this respect, that by section 58 of the general election law of 1913 the legislature
specifically recognized the right of recount, by fixing a timeto wit, sixty days from the date
of electionwithin which recount may be made. Section 1513, Revised Laws, being the only
statute providing directly for recount, other than in the case of a tie vote, the inference follows
that the legislature of 1913, which enacted the general election law, rather recognized the
existence of section 1513, and contemplated its operation. (Stats. 1913, p. 541.)
[2] It is next contended by petitioner that section 1513 is void, as in contravention of
article 4, sec. 17, of the state constitution, wherein it is provided that each law enacted shall
embrace but one subject, and matter properly connected therewith, which subject shall be
briefly expressed in the title.
38 Nev. 56, 61 (1914) McBride v. Griswold
expressed in the title. In this respect we deem it only necessary to say that section 1513, by its
provisions as affecting this case, does no more than any other section of the act, wherein a
specific power is conferred upon, or a specific duty is required of, that certain body created by
the act itself and designated a board of county commissioners. By the title of the act notice is
given of that which the act seeks to create; and, as a secondary matter, the title gives notice
that powers will be conferred in the thing created, and duties will be imposed upon the thing
created. The duties and powers conferred by section 1513 are not such as could be considered
foreign to county governmentthe very thing of which the board of county commissioners,
created by this act, were given specific supervisory powers and duties. Nothing contained in
section 1513 is incongruous with the general subject matter of which the title of the act gives
ample notice. (Cooley, Const. Lim. 7th ed. 206.) The provisions of section 1513 are properly
germane to, and properly connected with, the subject expressed in the title of the act; and, this
being true, it is conclusive of this phase of the question, under the rule considered by this
court in the case of State, ex rel. John Sparks, et al., v. State Bank and Trust Co., et al., 31
Nev. 456, 103 Pac. 407, 105 Pac. 567, and to the same effect in Ex Parte Ah Pah, 34 Nev.
283, 119 Pac. 770.
[3] It is contended by the petitioner that section 1513 confers judicial powers upon the
board of county commissioners, and is therefore void. We deem this contention untenable.
With the same seriousness it might be contended that the acts of the judges of election in the
several precincts, in canvassing the votes cast in their respective precincts, were judicial,
rather than ministerial. (County of Calaveras v. Brockway, et al., 30 Cal. 325.)
It is contended that the board of county commissioners have no power to determine the
result of an election affecting state officials. We deem it unnecessary, however, to dwell at
length on this phase, inasmuch as by the specific provisions of section 1513 the power is
conferred upon the board of county commissioners, and, moreover, the duty is imposed
upon them, to conduct recounts and declare results after having canvassed the vote for
certain officers, of which officers, that of legislator is specifically mentioned.
38 Nev. 56, 62 (1914) McBride v. Griswold
upon the board of county commissioners, and, moreover, the duty is imposed upon them, to
conduct recounts and declare results after having canvassed the vote for certain officers, of
which officers, that of legislator is specifically mentioned. It is unnecessary, we deem it, for
us to dwell upon the question as to whether or not a state legislator is a state or county officer,
inasmuch as the application of the provisions of section 1513 would not be affected.
[4] As to the contention of petitioner that the board of county commissioners has no power
to reconvene, after adjournment, as a board of canvassers, we deem comment unnecessary,
further than to say that, in our judgment, the matter was sufficiently settled by the decision of
this court in the case of Wright v. Commissioners, 27 Nev. 33, 71 Pac. 145. As was said in
that case, the statute does not make any express limitation of time in which a demand for
recount may be made. Moreover, the imposition of a specific duty implies the power and
function to do what may be reasonably necessary to perform that duty. The statute might
properly have placed a limit of time within which the recount might be demanded and
conducted; but, being silent as to that, it is not for the court to legislate. It may be well to
observe, in this respect, that the demand for recount in the case at bar was made within the
time fixed for such demand by our general election law of 1913. (Stats. 1913, p. 541.)
[5] The entire matter here presented for consideration may be summed up in one question:
Will the board of county commissioners, by their contemplated act of recounting the votes
cast in the several precincts, exceed the legitimate powers conferred upon them by statute? If
they have no jurisdiction to proceed in the premises, or by their proceedings would exceed the
powers conferred upon them by statute, then the writ of prohibition is the proper remedy. The
several contentions made by petitioner, challenging the constitutionality of section 1513, go
solely to one central idea; namely, the authority of the board of county commissioners to act
in the premises.
38 Nev. 56, 63 (1914) McBride v. Griswold
of the board of county commissioners to act in the premises.
It is our conclusion, in the light of the foregoing observations, that section 1513, enacted
as it was by the legislature of 1877, and reenacted in its present form by the legislature of
1879, confers sufficient authority upon the board of county commissioners to proceed in the
premises.
It may be conceded that there are other remedies and other proceedings authorized by
different statutes which would effect the same or similar results. These, however, if such
exist, may be considered as concurrent, in their remedial effect, with section 1513.
[6] Even if it might be said that the general election law of this state enacted by the
legislature of 1913, or our code of civil procedure, or procedure at common law, would effect
a similar remedy to that contemplated by section 1513, yet, no other statute or proceeding
being incompatible with the provisions of section 1513, the remedy thus afforded must be
considered as cumulative, and the party seeking the relief may adopt either course at his
option. (State, ex rel. Jarvis, v. Craig, 100 Minn. 352, 111 N. W. 3; State, ex rel. Love, v.
Cosgrove, supra; Brown v. Dunn, 35 Nev. 174, 127 Pac. 81.)
For the foregoing reasons, the application of the petitioner for a writ of prohibition is
denied.
The alternative writ heretofore issued is hereby dismissed.
____________
38 Nev. 64, 64 (1914) State v. Salgado
[No. 2129]
STATE OF NEVADA, Respondent, v. JOSE
SALGADO, Appellant.
[145 Pac. 919 and 150 Pac. 764]
1. JuryChallenge for Actual BiasSufficiencyActual Bias.
Rev. Laws, sec. 7145, 7146, allow a challenge for cause on the general ground that a juror is disqualified
for want of any qualification prescribed by law, and on the particular ground that he is disqualified from
serving in the action on trial. Section 7147 allows a challenge for such a state of mind on the part of the
juror as leads to a just inference that he will not act with entire impartiality, designated actual bias.
Section 7150 provides that in a challenge for actual bias it must be alleged that the juror is biased against
the party challenging him, but that no one shall be disqualified by reason of a formed or expressed opinion
on the matter in issue, provided that it appears to the court that he can act impartially in the trial. Held, that
a challenge for actual bias, not stating any ground upon which the challenge rested or any reason on
which it was made or the party against whom the jury was biased, was in form insufficient. (Norcross, J.,
dissenting.)
2. JuryCompetencyBias.
A juror in a trial for murder who, from what he had read and heard, had formed and expressed an opinion
going to the merits of the case, and had talked about it with several persons, none of whom had witnessed
the homicide, and who on inquiry stated that he had an opinion as to defendant's guilt which would require
testimony to remove, but that he would lay such opinion aside and try the case on the evidence, was not
incompetent on the ground of actual bias.
3. HomicideHarmless ErrorAdmission of Evidence.
In a prosecution for homicide, where the age of the deceased girl was not a material issue in the case,
error, if any, in allowing a state's witness to answer a question calling for her apparent age, was harmless.
4. Criminal LawOpinion EvidenceAge of Decedent.
In a trial for murder, a witness for the state was competent to express his opinion as to the age of the
deceased girl, based upon his observations made at the time of the homicide, where such evidence was not
very important under the issues.
5. HomicideEvidenceActs and Declarations.
A statement by accused a very short time after the stabbing, which he was seen to do, that he had no knife
and had not cut decedent, was admissible as showing a consciousness of guilt.
6. Criminal LawEvidenceCollateral Offenses.
In a prosecution for killing by stabbing, evidence that the defendant stabbed another man during a fight
over the deceased a few minutes before he stabbed the deceased was admissible under
the exception to the rule excluding evidence of collateral crimes, in that it was with
reference to a contemporaneous crime, the circumstances of which were inseparable
from the crime charged.
38 Nev. 64, 65 (1914) State v. Salgado
a few minutes before he stabbed the deceased was admissible under the exception to the rule excluding
evidence of collateral crimes, in that it was with reference to a contemporaneous crime, the circumstances
of which were inseparable from the crime charged.
7. HomicideEvidencePossession of Weapons.
In a prosecution for killing by stabbing, evidence that defendant had had in his possession a knife similar
to the one found in close proximity to the scene of the stabbing was admissible; objection thereto going
rather to its weight than its admissibility.
8. HomicideEvidenceDefendant's Possession of WeaponIdentification.
The identification of a knife as that in defendant's possession the afternoon before the homicide and as
the one used by defendant when he stabbed the deceased held to warrant its admission in evidence.
On Rehearing
9. Criminal LawHomicideInstructionsIrresistible PassionExpress Malice.
An instruction was given defining irresistible passion as meaning that at the time of the act the reason
is disturbed or obscured by passion to an extent which might render ordinary men of fair average
disposition liable to act rashly, or without due deliberation or reflection, and from passion rather than
judgment, followed with the statement: Nor will irresistible passion, if proved to have existed, be
sufficient to reduce the degree of the offense where the killing was done with express malice, as heretofore
defined; under our statute express malice necessarily renders any murder murder of the first degree,
express malice having previously been defined in the language of the statute as that deliberate intention
unlawfully to take away the life of a fellow creature which is manifested by external circumstances capable
of proof: Held, error, for the reason that the instruction assumes that irresistible passion and express
malice could have coexisted in the case.
10. Criminal LawHomicideInstructionsIrresistible PassionExpress Malice.
An instruction which is the equivalent of saying to the jury: Nor will the fact that the killing was done
without due deliberation, if proven so to have been done, be sufficient to reduce the degree of the offense if
the killing was done with deliberate intention, is confusing, contradictory, and erroneous.
11. Criminal LawHomicideInstructionsIrresistible PassionExpress Malice.
An instruction erroneously assuming that irresistible passion and express malice may coexist, and, if
found to coexist, the element of express malice renders the killing murder in the first degree, is confusing,
contradictory, erroneous, and prejudicial.
38 Nev. 64, 66 (1914) State v. Salgado
12. Criminal LawHomicideImplied MaliceSudden Passion.
Implied malice and sudden passion may coexist, in which case the offense is not reduced to the grade of
manslaughter, but is murder of the first or second degree, depending upon the degree of passion.
13. Criminal LawHomicideIrresistible PassionDegree of Offense.
If irresistible passion is proven to have existed, the homicide could not have been committed with express
malice, and would not constitute murder of the first degree.
14. Criminal LawHomicidePassionDegree of Murder.
Where it appears from the evidence to the satisfaction of the jury that there are sufficient facts to cause in
the defendant a heat of passion insufficient to reduce the crime to manslaughter, but sufficient to prevent
the killing from being with that deliberate premeditation required to constitute murder in the first degree, it
would be the duty of the jury to bring in a verdict of murder in the second degree.
15. Criminal LawHomicideInstructionsExpress Malice.
An instruction was given reading: And if the jury should find from the evidence the existence of facts
and circumstances establishing beyond a reasonable doubt that the defendant had such a reckless disregard
of human life as necessarily includes a formed design against the life of Bessie Andy, the killing, if it
amounts to murder, would be on express malice, and consequently would be murder of the first degree.
Held, erroneous where the facts in evidence showing the manner of the killing are not such of themselves
as to establish necessarily a formed design, so as to preclude every other consideration except that of first
degree murder.
16. Criminal LawInstructionsExpress Malice.
Where death is produced by the common methods of stabbing or shooting, unless accompanied by other
peculiar circumstances, the mere fact of stabbing or shooting would not of itself preclude other
circumstances negativing a formed design against the life of the deceased.
McCarran, J., dissenting.
Appeal from the Fourth Judicial District Court, Elko County; E. J. L. Taber, Judge.
Jose Salgado was convicted of murder in the first degree, and he appeals. Affirmed, with
direction as to sentence.
Klein & Hale, for Appellant.
Geo. B. Thatcher, Attorney-General, and E. P. Carville, for the State.
38 Nev. 64, 67 (1914) State v. Salgado
By the Court, McCarran, J.:
The defendant was convicted of murder in the first degree for the killing of an Indian girl
known as Bessie Andy. From the judgment, and from an order denying a motion for a new
trial, defendant has appealed.
The killing took place on the main street of the town of Elko. The defendant, after
throwing the girl into a mud puddle in the street, and after stabbing another party, who
appears to have been a companion of the girl on that afternoon, returned to the spot where the
girl stood, and plunged his knife into her body some three of four times, causing almost
instant death.
The record in this case, in so far as the testimony is disclosed thereby, fails to set forth,
with any degree of satisfaction, any particular motive for the killing. The defendant testified
in his own behalf during the trial, and stated that he was a native of Mexico, 23 years of age,
and from his statement it may be gathered that the defendant and the woman whom he killed
had been living together for a number of years. The deceased was an Indian woman, about 20
years of age. The defendant stated that on occasions when he came to town a certain
Mexican, or half-breed, who, it appears, met the defendant and Bessie Andy, the deceased
woman, immediately before the homicide, was always trying to make trouble with him, and it
might be gathered by inference from his various statements that bad blood existed between
the defendant and this half-breed Indian or Mexican and that Bessie Andy, the deceased, was
the woman in the case about whom the unfriendly relations had grown up between the
defendant and the half-breed. The defendant in his testimony, in relating occurrences
immediately preceding the homicide, said that the half-breed wanted Bessie to go with him,
and had made a threat that if Bessie did not go with him that he would kill Bessie and the
defendant. Counsel for defendant asked, What did the Mexican say he wanted with Bessie?
to which the defendant replied, He wanted to take her to Golconda.
38 Nev. 64, 68 (1914) State v. Salgado
The father of Bessie Andy testified that the defendant had been about the Indian camp for
some weeks prior to the homicide, and that the defendant and Bessie, daughter of the witness,
had been together at least a part of this time. Just prior to the killing, the defendant and Bessie
Andy, together with the father and mother of the latter, had dinner together at a Chinese
restaurant. It appears from the testimony of the father of the girl that they had liquor, and that
he became quite intoxicated. After the dinner the four, consisting of the defendant and the
deceased girl, and the father and mother of the latter, left the restaurant and started toward the
Indian camp, passing through the business section of the town of Elko on the way. The
defendant and the deceased girl, who were traveling together on the way from the restaurant
toward the Indian camp, met the half-breed Indian boy, or half-breed Mexican, as he is
sometimes termed in the testimony of the several witnesses. The latter was in company with
one Jim Odell on the occasion of the meeting, and from the deposition of Odell, taken at the
preliminary examination and admitted in evidence, it appears that the defendant asked where
they were going, and the half-breed boy replied:
We are going to sleep.
Then, said Odell, the Indian girl, Bessie, said something to the (half-breed) Indian boy
in Indian. I don't know what she said, and he answered her, and then he (meaning Jose
Salgado) turned around and started to hitting Bessie.
Q. Then what followed, if anything? A. Then she fell at my feet, and she begged me and
the Indian boy to make him stop, and she got up on her feet and started across the street, and
the defendant run around in front of her, and pushed her down in the water and went on top of
her and started to beating her, and the Indian boy told him to stop, and he wouldn't do it, so
the Indian boy hit him, and the the Indian boy stepped back, and I tried to pull him off, and he
started to fighting with me. As I was fighting with him, I happened to get the best of him, and
he reached in his pocket and got a knife.
38 Nev. 64, 69 (1914) State v. Salgado
and he reached in his pocket and got a knife. As I seen him pull a knife, I let him go and ran
toward the S. P. track. The Indian boy then said something to him and he chased him into the
saloon. After he came out of the saloon he walked right over to Bessie, and the first stroke cut
her on the left side of the neck. He then started to walk away, and I don't know where they
caught him, but I guess somewhere up here.
Q. Did you see Jose strike Bessie with the knife? A. Yes, sir.
Q. How many times, as near as you remember? A. Well, I seen the first stroke, and then
he grabbed her around the neck and made several strokes. I do not know how many.
Witness Odell was asked:
How many times did you hit him (the defendant)? A. I don't remember, but I hit him
several times in the face.
A conviction of murder in the first degree was the result of the trial, and, the jury having
failed to designate the punishment, the court sentenced the defendant to death by shooting.
A statement of defendant's counsel, made to the jury before the presentation of his case, is
significant, inasmuch as it may have some bearing on the principal assignments of error. In
part, it is as follows:
If the court please, and gentlemen of the jury, we are not taking the position that this man
should not be punished for the crime. We are not attempting to prove that this man is not
guilty of killing Bessie Andy, and we are not going against the rules and laws of our social
life so far as to say that you should not punish Joe Salgado for killing Bessie Andy. But we
have disagreed with the state in this only: That he is not guilty of murder in the first degree,
but, under the circumstances of this case, we expect to make it clear and plain to you
gentlemen that he is guilty of a lesser crime, and that is why we are asking you to try himto
fix his punishment as will meet the circumstances. Therefore, understand us, gentlemen,
because we are in this courtroom and defending this case, we are not putting the county
of Elko to the expense of trying this man because we contend that he is not guilty of a
crime, but we are putting the county of Elko to the expense merely because we
conscientiously believe that this man is not entitled to the most extreme punishment of
the law, and therefore we will ask you, after we have shown to you to the best of our
ability the circumstances surrounding this case, to take the law and the instructions of
the court, or the evidence and the instructions of the court, and weigh everything
carefully, and do with Joe Salgado as you think ought to be done."
38 Nev. 64, 70 (1914) State v. Salgado
because we are in this courtroom and defending this case, we are not putting the county of
Elko to the expense of trying this man because we contend that he is not guilty of a crime, but
we are putting the county of Elko to the expense merely because we conscientiously believe
that this man is not entitled to the most extreme punishment of the law, and therefore we will
ask you, after we have shown to you to the best of our ability the circumstances surrounding
this case, to take the law and the instructions of the court, or the evidence and the instructions
of the court, and weigh everything carefully, and do with Joe Salgado as you think ought to be
done.
The principal assignment of error relied upon by the appellant charges the trial court with
error for having denied the defendant's challenge to the juror F. R. Jacoby. The defendant
challenged the juror for actual bias, and in this respect we deem it sufficient to say that the
juror, by his answers to interrogatories propounded to him, signified that he had read of the
case and had talked to several people with reference to the case; that from what he had read
and heard he had formed and had expressed an opinion going to the merits of the case. It
appears that none of the parties with whom he had conversed witnessed the homicide. His
condition of mind with reference to the case is set forth in the following:
Q. Well, right now then you have an opinion as to whether this man be guilty of murder
in the first degree, or otherwise, haven't you? A. I have.
Q. And if you sat as a juror on this case right at the outset of the trial one of the parties
would be under a disadvantage in your mind, wouldn't they? A. Yes. sir.
Q. It would require a certain amount of testimony to remove that disadvantage from your
mind? A. It would.
He further stated:
I mean at the present time I have what you may call a fixed opinion, but, if the evidence
disagreed with the opinion that I have formed and what I have read, I could change my
opinion.
In response to questions propounded by the court, the juror answered that he could, if
accepted as a juror, lay his opinion aside and try the case on the evidence presented at
the trial.
38 Nev. 64, 71 (1914) State v. Salgado
juror answered that he could, if accepted as a juror, lay his opinion aside and try the case on
the evidence presented at the trial. In view of the form of the objection interposed, the
substance of the answer given by the juror Jacoby and the statements made by him are not
subject to the same consideration as they would be if the objection had assumed another form.
[1] The statute relative to this subject provides that a challenge for cause may be taken by
either party relative to a particular juror, for reasons:
First: General; i. e., that the juror is disqualified from serving in any case by reason of his
having been convicted of a felony; for want of any qualifications prescribed by law; or is of
unsound mind or has physical defects which would render him incapable of performing the
duties of juror.
Second: Particular; i. e., that he is disqualified from serving in the action on trial. (Rev.
Laws, secs. 7145, 7146.)
Particular causes of challenge are by our statute divided into classes: First, such a bias as,
when the existence of the facts is ascertained, in judgment of law, disqualifies the
jurordesignated implied bias; second, such a state of mind on the part of the juror as leads
to a just inference, in reference to the case, that he will not act with entire
impartialitydesignated actual bias. (Rev. Laws, sec. 7147.)
Section 7150 of our Revised Laws prescribes how a challenge for either implied or actual
bias may be taken. It is as follows:
In a challenge for implied bias, one or more of the causes stated in section 298 must be
alleged. In a challenge for actual bias, it must be alleged that the juror is biased against the
party challenging him; but no person shall be disqualified as a juror by reason of having
formed or expressed an opinion upon the matter or cause to be submitted to such jury,
founded upon public rumor, statements in public press, or common notoriety, provided it
appears to the court, upon his declaration, under oath or otherwise, that he can and will,
notwithstanding such an opinion, act impartially and fairly upon the matters submitted to
him."
38 Nev. 64, 72 (1914) State v. Salgado
such an opinion, act impartially and fairly upon the matters submitted to him.
Under our former procedure, a challenge for actual bias required that the court should
appoint triers to determine it. The new procedure adopted in 1912 did away with the process
of determination by triers, and made the court the forum in which both implied bias and
actual bias should be determined. It is unnecessary for us to determine in this instance as to
the qualification of the juror as disclosed by his answer made on voir dire, nor is it essential
that we pass upon the question of implied bias, inasmuch as the challenge was not for implied
bias, but intended rather to constitute a challenge for actual bias.
Under our former practice act, where triers were required to determine the truth or falsity
of a challenge, it was essential that the challenge, when made, should conform to the statutory
prescription. The change of the forum by which the challenge should be determined, from
triers, as formerly prescribed, to the court, as under the new procedure, did not, in our
judgment, in any way change the force and effect of the statute as to the essential grounds
upon which the challenge should be based, or the essential form of the challenge. The statute
in that respect remains the same as that formerly in force, the ground being, as prescribed:
The existence of a state of mind on the part of the juror which leads to a just inference, in
reference to the case, that he will not act with entire impartialitythe form of the challenge
being, at least in substance, as prescribed by statute, that the juror is biased against the party
challenging him.
The mere assertion, Challenge the juror for actual bias, fails to state any ground upon
which the challenge rests or by reason of which it is made, or as to the party against whom he
is biased, and hence the requirements of the statute are not followed, and no statutory
challenge is interposed. (People v. Hopt, 3 Utah, 398, 4 Pac. 250; Robinson v. Territory, 16
Okl. 241, 85 Pac. 451.) In the case of People v. Hopt, supra, the Supreme Court of Utah
passed upon the question here under consideration, and in the light of a statute identical
to ours, and under almost identical conditions. To the same effect is the case of State v.
Gordon, 5 Idaho, 297, 4S Pac.
38 Nev. 64, 73 (1914) State v. Salgado
case of People v. Hopt, supra, the Supreme Court of Utah passed upon the question here
under consideration, and in the light of a statute identical to ours, and under almost identical
conditions. To the same effect is the case of State v. Gordon, 5 Idaho, 297, 48 Pac. 1061. This
question was passed upon in an early decision by the Supreme Court of California under a
statute similar to our former practice act requiring triers, and the reasoning there set forth we
deem applicable to this case. People v. Reynolds, 16 Cal. 130.) It has repeatedly been held by
this court that a challenge for implied bias which fails to state one or more of the statutory
grounds as a basis for challenge is insufficient. (State v. Raymond, 11 Nev. 98; State v.
Vaughan, 22 Nev. 296, 39 Pac. 733; State v. Gray, 19 Nev. 212, 8 Pac. 456; State v. Simas,
25 Nev. 449, 62 Pac. 242.)
The determination of the question of actual bias being by our more recent practice left with
the court, the same forum as that to which the question of implied bias is submitted for
determination, the reasoning which was followed by this court on the question of the
sufficiency of a challenge for implied bias should, in our judgment, warrant us now in
holding, as was held by the Supreme Court of Utah in the case of People v. Hopt, supra, that,
in order for the challenging party to raise any point for the consideration of the court, there
must be a declaration of cause substantially complying with the provisions of the statute, and
the form of the challenge must be in substantial compliance with that prescribed by statute; i.
e., that the juror is biased against the party challenging.
The challenge was insufficient in form; and, while it does not appear from the record as to
whether the court denied the challenge for this reason, or because he deemed the juror free
from objection, the ruling must be sustained for failure to declare a ground of challenge
known to the statute. (State v. Vaughan, supra; Robinson v. Territory, 16 Okl. 241, 85 Pac.
451; State v. Myers, 198 Mo. 248, 94 S.W. 242.)
38 Nev. 64, 74 (1914) State v. Salgado
[2] From the record in this case with reference to the voir dire examination of the juror
Jacoby, it appears that, if he was disqualified at all, it was only such a disqualification as
would subject him to a challenge for implied bias, and was not such as would in any way
subject him to a challenge for actual bias. He was not challenged on the ground of implied
bias; hence it is unnecessary for us to deal with that phase; suffice it to say that, had a
challenge for implied bias been interposed to the juror Jacoby, the trial court, following the
rule laid down by this court in the case of State v. Roberts, 27 Nev. 449, 77 Pac. 598, would
have been required to allow the challenge and excuse the juror.
Assuming that the challenge interposed had been made in substantial compliance with the
statute, we find nothing in the examination of the juror which would indicate to our mind that
he was subject to such a challenge; hence, laying aside the question of the sufficiency of the
challenge as to form, there was no error in the denying of the challenge on the issue made.
Statements of the juror made on voir dire failed to disclose that he had ever known or seen
the defendant. In fact, the defendant was a man who was apparently but little known in the
community. The juror's answers disclosed nothing from which we may infer a personal
feeling or bias toward or against the defendant or any one connected with the defense. He had
read of the case, had heard the case talked of, had heard the matter of the killing of the Indian
girl discussed, had entered into the discussion, perhaps, and from what he had read and heard
he had formed an opinion. The parties with whom he had talked or who had discussed the
incident in his presence were not witnesses to the killing. The opinion which he had he said
was not fixed or set, but that he could lay it aside and determine the guilt or innocence of the
defendant on the evidence produced at the trial. Having all of these disclosures as to the
condition of the juror's mind with reference to the defendant, the party challenging, in view of
the position taken by defendant as to the commission of the act, and in view of the
declaration of defendant's counsel made as a preliminary statement to the jury, it can
scarcely be seriously contended that the court could have been successfully charged with
error if it denied the challenge in the event that the same had been properly interposed.
38 Nev. 64, 75 (1914) State v. Salgado
the commission of the act, and in view of the declaration of defendant's counsel made as a
preliminary statement to the jury, it can scarcely be seriously contended that the court could
have been successfully charged with error if it denied the challenge in the event that the same
had been properly interposed.
[3-4] The appellant assigns error to the trial court for having permitted the state's witness
McNamara to respond to a question calling for the apparent age of the dead girl. The
objection to the interrogatory was upon the ground that it called for a conclusion, was
incompetent, and immaterial. The age of the girl was not a material issue in the case, and
hence, even if the contention of appellant was well founded, the error would be harmless, but,
aside from that, the witness was a competent witness to express his opinion as to the age of
the deceased, based upon his observations made at the time of the homicide. The relevancy of
such testimony depends upon the nature of the issues being tried. If the issues were sharply
drawn of the question of age, a different rule might apply, but that is not before us for
consideration. Opinion evidence gains its sanction in the law by reason of the rule of
necessity. No hard-and fast rule has been promulgated by which evidence of this character
may be judged. In cases where the age of a person is an issue, such as cases involving carnal
knowledge of a female under the age of consent, the opinion of witnesses as to the age of the
prosecutrix, based on their observation, has been held competent. (Walker v. State, 25 Tex.
App. 448, 8 S. W. 644; Bice v. State, 37 Tex. Cr. R. 38, 38 S. W. 803; 17 Cyc. 98.)
[5] The witness Carter was permitted, over the objections of defendant's counsel, to testify
as to a statement made by defendant a very short time after the stabbing. The statement
testified to as having been made by defendant was in denial of the affair in which he said Me
no got a knife; me no cut. There is no contention that the testimony was not properly res
gestae. Utterances made by the defendant after the act of which he is accused, which are
intended to set up a false defense, are admissible in cases of this character as tending to
show consciousness of guilt.
38 Nev. 64, 76 (1914) State v. Salgado
which are intended to set up a false defense, are admissible in cases of this character as
tending to show consciousness of guilt. (2 Wharton, Criminal Evidence, 1752, 1753; Rex v.
Steffoff, 20 Ont. L. R. 103; State v. Clark, 160 Iowa, 138, 140 N. W. 821.)
[6] The evidence produced by the prosecution as to the act of the defendant in stabbing
another man a few minutes before stabbing the Indian girl was properly received. It was
directly a part of the main event in which the deceased lost her life, so closely connected as to
be inseparable in a narrative as to the acts of the defendant at the time of the homicide. This
evidence was admissible under the exception to the rule excluding evidence of collateral
crimes, in that it was with reference to a contemporaneous crime, the circumstances
surrounding which were, as we have said, essential to a sequential narrative of the main
event.
[7] We find no error in the admission of the evidence as to the defendant having had in his
possession a knife similar to the one found in close proximity to the scene of the homicide.
Testimony as to the former possession of weapons similar to those found in possession of, or
traced even by circumstantial evidence to, the defendant, is always admissible. Objection to
this class of evidence is rather to its weight than to its admissibility. (2 Wharton, Criminal
Evidence, 1748.)
[8] The knife received in evidence was identified as having been in the defendant's
possession the afternoon before the homicide, and the witness Odell identified the knife as
being the one used by defendant when he stabbed the girl. No further identification was
necessary for its admission in evidence. There is therefore no merit in appellant's contention
in this respect.
We find no other assignments of error which we deem sufficiently important to require
extended comment. The killing of the girl was admitted by counsel for defendant to the jury
in his preliminary statement. Appellant only sought to have the punishment mitigated. While
it was within the power of the jury to have returned a verdict fixing the punishment at life
imprisonment or one fixing the punishment at death, they refused to do either, but
rendered their verdict fixing only the degree of the crime.
38 Nev. 64, 77 (1914) State v. Salgado
fixing the punishment at life imprisonment or one fixing the punishment at death, they
refused to do either, but rendered their verdict fixing only the degree of the crime. We find
nothing in the record from which it might be inferred that appellant received other than a fair
trial, or that a different result might flow from another trial.
The judgment is affirmed, and the court below is directed to fix a time and make all
necessary and proper orders for having its sentence carried into effect by the warden of the
state prison.
Talbot, C. J.: I concur.
Norcross, J., concurring:
I concur in the judgment and in the opinion generally of Mr. Justice McCarran. There are,
however, some portions of the opinion of my learned associate, relative to the rulings of the
court below upon the objections to the juror Jacoby, in which I an not entirely in accord. The
juror was first challenged upon the ground of actual bias, and later a further challenge was
interposed upon the ground that the juror has answered that he has a fixed opinion as to the
guilt or innocence of this man. It must be conceded that the challenges interposed were not
technically and strictly in the form prescribed by the statute; yet I am of opinion that, had the
examination of the juror disclosed that he was disqualified either for actual or implied bias,
the right of the defendant to be tried by a fair and impartial jury ought not to turn on the mere
technical form of the objection, where the form of the challenge was not questioned by the
court or opposing counsel, and where the course of the examination of the juror indicated that
a proper challenge was assumed to have been made. A challenge for actual bias should, as the
statute prescribes (Rev. Laws, sec. 7150), allege that the juror is biased against the party
challenging him. But should a failure to allege that the bias is against the party challenging
operate to make the challenge unavailing, in the absence of objection to its form, where the
whole line of the examination of the juror indicates that, if the juror is biased at all, it is
against the party interposing the defective challenge, and that question is apparent to the
court and the prosecuting attorney to be the one actually under investigation?
38 Nev. 64, 78 (1914) State v. Salgado
juror indicates that, if the juror is biased at all, it is against the party interposing the defective
challenge, and that question is apparent to the court and the prosecuting attorney to be the one
actually under investigation? I think not.
The same situation is presented with regard to the challenge interposed, that the juror has
answered that he has a fixed opinion as to the guilt or innocence of this man. Strictly and
technically this challenge should have been for implied bias, and the eighth clauses should
have been designated:
(8) Having formed or expressed an unqualified opinion or belief that the prisoner is guilty
or not guilty of the offense charged.
The examination of the juror discloses, however, that this was the question under
investigation, and that neither the court nor the prosecution was misled by the form of the
challenge, In State v. Raymond, 11 Nev. 107, this court, speaking through Hawley, J.,
regarded a deliberate or fixed opinion and an unqualified opinion as synonymous. See,
also, State v. Roberts, 27 Nev. 449, 77 Pac. 598.
The tendency of modern decisions is to disregard technicalities. Judgments of conviction
will not be disturbed for errors which do not affect the defendant's substantial rights.
Certainly as much reason exists for supporting a rule that a defendant in a criminal case will
not be held to have lost a substantial right because of any mere technicality in the form of an
objection which has not misled the prosecution or the court in its ruling.
The examination of the juror Jacoby as to his qualifications was gone into quite thoroughly
and at considerable length. From the whole examination it appears quite clear, I think, that the
court did not err in denying the challenge either for actual or implied bias. While the juror, in
answer to a question of counsel for the defendant, replied, At the present time I have what
you might call a fixed opinion, other portions of his examination show clearly that he did
not have a "fixed" opinion in the sense of an unqualified opinion.
38 Nev. 64, 79 (1914) State v. Salgado
show clearly that he did not have a fixed opinion in the sense of an unqualified opinion. As
further indicating the character of opinion entertained by the juror, the following excerpt is
taken from the examination upon the part of the prosecuting attorney:
Q. Then the opinion that you have is conditioned, is it not, upon what you have heard of
the facts being true; that is, if what you have heard of the facts differs from the evidence here,
the opinion which you have already formed you would entirely disregard, would you not? A. I
would.
Q. Now, would you to any extent as a juror be influenced by what you have heard of this
case? A. I think not.
Q. Do you feel that you could sit as a juror in this case and do equal justice to the state
and to the defendant? A. I think so.
Also the following excerpt from the examination of the juror by the court:
Q. Mr. Jacoby, if you should be accepted as a juror and sworn to try the case with the
other eleven, would the opinion which you have at this time have any influence upon your
verdict? A. No; I don't think it would.
Q. Now, the important thing with you is: Could you and would you, if accepted as a juror,
act with entire impartiality in this case? A. I think I would; yes, sir.
Q. Well, do you feel sure that you could and would do that? A. I think so.
Also the following excerpt from the further examination of the juror by counsel for
defendant:
Q. Mr. Jacoby, wouldn't it be necessary for one side to introduce a certain amount of
evidence to overcome that opinion? A. No; I don't think so. I think if I sat as a juror I would
give a decision strictly according to the evidence.
It nowhere definitely appears from the examination that the juror had formed or expressed
an unqualified opinion. Such opinion as the testimony discloses the juror had was clearly a
qualified opinion based "upon public rumor, statements in public press, or common
notoriety."
38 Nev. 64, 80 (1914) State v. Salgado
juror had was clearly a qualified opinion based upon public rumor, statements in public
press, or common notoriety. It further quite clearly appears that, notwithstanding such an
opinion, the juror would act impartially and fairly upon the matters submitted to him.
Assuming, as I do, that a sufficient challenge for implied bias was interposed, I cannot
agree with the prevailing opinion that the challenge is good under the rule laid down by this
court in State v. Roberts, 27 Nev. 449, 77 Pac. 598. The statute upon which the Roberts case
was based has been materially modified since that decision. The only proviso existing in the
statute at the time of the Roberts decision which operated to prevent the formation or
expression of an unqualified opinion from becoming an absolute disqualification upon proper
challenge was the following:
That such unqualified opinion or belief shall not have been formed or expressed or based
upon the reading of newspaper accounts of the transaction. (Cutting's Compiled Laws, 1900,
sec. 4305.)
A reference to Rev. Laws, sec. 7150, quoted in the prevailing opinion, will show the
change in the law made by the later statute.
On Rehearing
By the Court, Norcross, C. J.:
A rehearing was granted in this case in order that further consideration might be given to
the following instruction:
Irresistible passion,' as used in these instructions, means something more than mere
anger or irritation. It means that at the time of the act the reason is disturbed or obscured by
passion to an extent which might render ordinary men of fair average disposition liable to act
rashly, or without due deliberation or reflection, and from passion rather than judgment.
Nor will irresistible passion, if proved to have existed, be sufficient to reduce the degree
of the offense where the killing was done with express malice, as heretofore defined;
under our statute express malice necessarily renders any murder, murder of the first
degree.
38 Nev. 64, 81 (1914) State v. Salgado
the killing was done with express malice, as heretofore defined; under our statute express
malice necessarily renders any murder, murder of the first degree.
And if the jury should find from the evidence the existence of facts and circumstances
establishing beyond a reasonable doubt that the defendant had such a reckless disregard of
human life as necessarily included a formed design against the life of Bessie Andy, the
killing, if it amounts to murder, would be on express malice, and consequently would be
murder of the first degree.
In the former opinion in this case this instruction was not considered. A more extended
examination of the instruction, with a view to its bearing upon the peculiar facts of this case,
convinces us that it is both erroneous and prejudicial.
The court had previously instructed the jury, in the language of the statute, that:
Murder is the unlawful killing of a human being, with malice aforethought, either express
or implied.
Express malice is that deliberate intention unlawfully to take away the life of a fellow
creature which is manifested by external circumstances capable of proof.
Malice shall be implied when no considerable provocation appears, or when all the
circumstances of the killing show an abandoned and malignant heart.
The jury was also instructed as follows:
In cases where the unlawful killing is not perpetrated by means of poison, or lying in
wait, or torture, or in the perpetration, or attempted perpetration, of any of the enumerated
felonies, a difficulty is sometimes experienced in drawing the distinction between murder of
the first degree and murder of the second degree; but this difficulty is more apparent than real,
and that there may be no confusion in the minds of the jury I will briefly restate the
distinction. The real test to be applied in such cases is the presence or absence in the mind of
the slayer, at the time of the commission of the murder, of a deliberate and premeditated
intent to kill. In order to constitute murder of the first degree, the unlawful killing must be
accompanied by a deliberate and clear intent to take life.
38 Nev. 64, 82 (1914) State v. Salgado
murder of the first degree, the unlawful killing must be accompanied by a deliberate and clear
intent to take life. The intent to kill must be the result of deliberate premeditation. It must be
formed upon preexisting reflection, and not upon a sudden heat of passion sufficient to
preclude the idea of deliberation.
The expression, irresistible passion, was used in none of the instructions given,
excepting the one quoted supra. The expression appears in two rejected instructions, one of
which dealt with the law of manslaughter. Reading the definitions of irresistible passion
and express malice into the instruction, we may have, as a resultant, something like this:
Nor will the fact that the killing was done without due deliberation, if proven so to have
been done, be sufficient to reduce the degree of the offense if the killing was done with
deliberate intention.
[9-14] It is contended that irresistible passion and express malice may coexist, and that the
instruction is not fundamentally erroneous. For illustration, it is said that if A forms a
deliberate design unlawfully to take the life of B, but that before A is able to carry out the
preconceived design something intervenes to cause in A an irresistible passion, such
subsequent aroused passion would not operate to reduce the degree of homicide. It might be
sufficient observation upon the illustration to say that in such a case it would be proper to
instruct the jury that the subsequent irresistible passion would not operate to change the
previously formed deliberate design, so as to effect a substituted and different causation for
the killing. Under such a state of facts, it would be the duty of the court to instruct with
reference to such facts so that the jury would not be confused. No such facts are presented in
this case, and we need only consider what we think to be true as a general proposition of the
law of homicide, to wit, that irresistible passion and express malice cannot coexist. If
irresistible passion is proven to have existed, the homicide could not have been committed
with express malice, and it could not be murder of the first degree. Authority exists in support
of the proposition that implied malice and sudden passion may coexist, in which case the
offense is not reduced to the grade of manslaughter.
38 Nev. 64, 83 (1914) State v. Salgado
coexist, in which case the offense is not reduced to the grade of manslaughter. As was said in
Wharton on Homicide, 3d ed. sec. 163:
If malice existed, the crime is murder, and not manslaughter, though sudden passion
coexisted and the homicide was the product of both. * * * If the provocation is
inconsiderable, the law implies malice, and the homicide is murder; if it is great, malice will
not be inferred, and it will be deemed to be manslaughter.
In Commonwealth v. Eckerd, 174 Pa. 137, 34 Atl. 305, it was held, in effect, that passion,
even though sudden, must be upon sufficient provocation to repel the implication of malice.
In Brewer v. State, 160 Ala. 66, 75, 49 South. 336, it was held that where the evidence
showed that the defendant acted with malice, the fact that such malice may be accompanied
with passion or anger aroused by deceased will not reduce the offense to manslaughter. See,
also, Bohanan v. State, 15 Neb. 209, 18 N. W. 129; State v. Ashley, 45 La. Ann. 1036, 13
South. 738; State v. Johnson, 23 N. C. 354, 35 Am. Dec. 742. While malice and passion may
coexist and a homicide be the result of both, express malice and irresistible passion, as
those terms are defined in the statute, cannot coexist. In express malice there is premeditation
and deliberation, which are wanting in irresistible passion. As said in Nye v. People, 35 Mich.
19, it would be a perversion of terms to apply the term deliberate' to any act which is done
on a sudden impulse.
See, also, Brown v. Commonwealth, 86 Va. 466, 10 S. E. 745.
The instruction complained of in this case not only erroneously assumes that irresistible
passion and express malice may coexist, but that if they do coexist, the element of express
malice renders the killing murder in the first degree. The proposition of law that express
malice, if determined to exist, renders the killing murder of the first degree, taken by itself,
may be conceded to be a correct statement of the law. Taken in connection with the other part
of the instruction, it renders the whole instruction confusing, contradictory, erroneous, and
prejudicial. If the facts shown by the evidence were in this case sufficient in the minds of
the jury to cause in the defendant a heat of passion insufficient to reduce the crime to
manslaughter, but sufficient to prevent the killing from being with that deliberate
premeditation required to constitute murder in the first degree, it would be the duty of
the jury to bring in a verdict of murder in the second degree.
38 Nev. 64, 84 (1914) State v. Salgado
this case sufficient in the minds of the jury to cause in the defendant a heat of passion
insufficient to reduce the crime to manslaughter, but sufficient to prevent the killing from
being with that deliberate premeditation required to constitute murder in the first degree, it
would be the duty of the jury to bring in a verdict of murder in the second degree. (21 Cyc.
732.) The evidence was such in this case as to make it of the greatest importance to the
defendant that the jury be correctly instructed upon the law of murder in the first and in the
second degree. Defendant had taken Bessie Andy, the deceased, and the father and mother of
the latter to a Thanksgiving Day dinner at a Chinese restaurant and, having finished the
dinner, were on their way to the Indian camp which was the home of the father and mother of
the deceased, when they met the white man, Odell, and the half-breed Indian or Mexican.
Prior to this meeting there is nothing to indicate but that the relationship between defendant
and the Indian girl, Bessie Andy, was the most cordial. The defendant testified that he had
been living with Bessie Andy for several years previous in the relation of husband and wife.
When they met the other parties on the street some casual words of greeting were spoken.
Then something was said in the Indian language by Bessie Andy to the half-breed and by him
to her. What the conversation was does not appear from the testimony of the state's witnesses.
The defendant testified that the half-breed wanted Bessie to go with him to Golconda, and
threatened that if she did not do so he would kill Bessie and the defendant. Whatever this
conversation was, it caused defendant to become suddenly enraged and to make a violent
assault upon Bessie Andy. He knocked her down with his fist, and was beating her when
Odell and the half-breed interfered in her behalf. Odell testified that the half-breed struck
defendant, and that he also struck defendant several times in the face; that he had his arm
around defendant's neck and was hitting him when defendant drew his knife form his pocket.
38 Nev. 64, 85 (1914) State v. Salgado
pocket. Odell and the half-breed then ran. Defendant chased the half-breed into a nearby
saloon and stabbed him. Immediately thereafter he came out of the saloon to where Bessie
Andy was standing and stabbed her to death. The whole proceeding did not exceed a minute
or two in time. From a relation ship apparently of the most friendly character a change
suddenly takes place, and within a few seconds or minutes defendant kills one with whom he
has been most intimately associated for years. There can be no doubt of defendant's being in
passion. The degree of that passion as affecting deliberation and premeditation was a matter
for the jury to consider in determining the degree of guilt from instructions clearly defining
the law of murder in its different degrees.
[15-16] The last paragraph of the instruction in question we think also objectionable and in
a case like this, without further elucidation, liable to be misleading. The paragraph appears to
be adopted from a note in 21 Cyc. 731, and is based on an instruction given in the case of
Burt v. State, 38 Tex. Cr. R. 397, 40 S. W. 1000, 43 S. W. 344, 39 L. R. A. 305, 330. The
circumstances of the killing as disclosed by the evidence in the Burt case would necessarily
establish a formed design, and of itself be conclusive proof of express malice in a sane
person. The defense in the Burt case was insanity. If sane, the circumstances of the killing
precluded every other consideration but first degree murder. For illustration, if a homicide is
committed by binding and weighting the body, then throwing the same into water so death is
necessarily produced by drowning, the method of accomplishing death conclusively
establishes a formed design against the life of the deceased. There death is produced by the
common methods of stabbing or shooting, unless accompanied by other peculiar
circumstances, the mere fact of stabbing or shooting would not of itself preclude other
considerations negativing a formed design against the life of the deceased.
38 Nev. 64, 86 (1914) State v. Salgado
For the reasons given, the judgment is reversed, and the cause remanded for a new trial.
Coleman, J.: I concur.
McCarran, J., dissenting:
I dissent.
The instruction, the giving of which is assigned as error, is as follows:
Irresistible passion,' as used in these instructions, means something more than mere
anger or irritation. It means that at the time of the act the reason is disturbed or obscured by
passion to an extent which might render ordinary men of fair average disposition liable to act
rashly, or without due deliberation or reflection, and from passion rather than judgment.
Nor will irresistible passion, if proven to have existed, be sufficient to reduce the degree
of the offense where the killing was done with express malice, as heretofore defined; under
our statute express malice necessarily renders any murder, murder of the first degree.
And if the jury should find from the evidence the existence of facts and circumstances
establishing beyond a reasonable doubt that the defendant had such a reckless disregard of
human life as necessarily includes a formed design against the life of Bessie Andy, the
killing, if it amounts to murder, would be on express malice, and consequently would be
murder of the first degree.
It is the contention of appellant that the trial court, in the giving of this instruction to the
jury, instructed them upon a physical and mental impossibility. In other words, appellant
contends that express malice and irresistible passion cannot be coexistent in the mind of a
human being; and we are referred to some authorities holding that there cannot be an
irresistible passion and express malice coexisting. Although there is some diversity of opinion
on the subject, the weight of authority and, in my judgment, the better reasoning, support the
proposition that malice and irresistible passion may coexist. In the case of People v. Lilley, 43
Mich. 521, 5 N.W. 982, it was held that where the provocation is slight, or where there is
time for the passion to subside and the blood to cool, or if there is evidence of actual
malice, or if the provocation be resented in a brutal and ferocious manner, evincing a
malignant dispositionin all such cases, if death ensue, the offense is murder.
38 Nev. 64, 87 (1914) State v. Salgado
it was held that where the provocation is slight, or where there is time for the passion to
subside and the blood to cool, or if there is evidence of actual malice, or if the provocation be
resented in a brutal and ferocious manner, evincing a malignant dispositionin all such
cases, if death ensue, the offense is murder.
To reduce the offense to manslaughter, says the court, all these things must be wanting,
and the act must be done while reason is obscured by passion, so that the party acts rashly and
without reflection.
In the case of Brewer v. State, 160 Ala. 66, 49 South. 336, it was held that where a killing
was wholly the result of passion and without malice it was manslaughter; but where the
killing was malicious and unlawful, the mere presence of passion and anger would not reduce
the crime to manslaughter. In the case of State v. Ashley the Supreme Court of Louisiana said:
The proposition advancedthat, because a homicide is committed in sudden passion,
therefore, necessarily, it is not murderis not law. There are many cases where that fact
would entitle an accused neither to an acquittal nor to a verdict of manslaughter. (State v.
Ashley, 45 La. Ann. 1036, 13 South. 738.)
To the same effect is Brooks and Orme v. Commonwealth, 61 Pa. 352, 100 Am. Dec. 645.
In the case of Bohanan v. State, the Supreme Court of Nebraska, in passing upon a requested
instruction to the effect that if the killing were done upon a sudden quarrel, and in the heat of
passion, they should find the defendant guilty of manslaughter only, said: This was refused,
and properly, too, for the reason that it ignored completely the effect of malice if that were
found to have accompanied the act. A malicious killing, although upon sudden quarrel, and in
heat of passion, is murder in the second degree, at least. (Bohanan v. State, 15 Neb. 209, 18
N. W. 129.)
In the case of Commonwealth v. Eckerd, 174 Pa. 137, 34 Atl. 305, the Supreme Court of
Pennsylvania held to the effect that the fact that the killing was done in sudden passion does
not prevent it being murder in the first degree, if the evidence disclosed that malice was
also present in the mind of the slayer.
38 Nev. 64, 88 (1914) State v. Salgado
passion does not prevent it being murder in the first degree, if the evidence disclosed that
malice was also present in the mind of the slayer. In the case of State v. Johnson, 23 N. C.
354, 35 Am. Dec. 742, the court held, in effect, that provocation never disproves malice; it
only removes the presumption of malice which the law raises without proof, and a malicious
killing is murder, however gross the provocation. In a treatise on the Law of Crimes, by Clark
and Marshall, the authors hold that in no case will an assault, however violent, mitigate the
offense if at the time of the commission of the offense there was malice in the mind of the
perpetrator.
And malice may well be inferred, say the authors, if the retaliation was outrageous in
its nature, either in the manner of the circumstances of it, and beyond all proportion to the
provocation, because,' as it has been said, it manifests rather a diabolical depravity than the
frailty of human nature.' (Clark and Marshall on the Law of Crimes, 356.)
If malice existed, says Mr. Wharton in his work on Homicide, the crime is murder, and
not manslaughter, though sudden passion coexisted and the homicide was the product of
both. (Wharton on Homicide, 3d ed. 259.)
In State v. Newton, 28 La. Ann. 65, the court held that it was not error for the trial court to
refuse to instruct, in a prosecution for homicide, that:
Malice excludes passion; passion presupposes the absence of malice. In law they cannot
coexist.
In the case of Martin v. State, 119 Ala. 1, 25 South. 255, the court held that homicide
might be committed in the heat of passion suddenly aroused by a blow, and yet be done
maliciously; that suddenly aroused passion and malice may coexist, and both cause the act;
that when this is the case the homicide, otherwise indefensible murder, is not reduced to
manslaughter by reason of the passion. To the same effect is the holding in Ex Parte Brown,
65 Ala. 446; Jackson v. State, 74 Ala. 26; Prior v. State, 77 Ala. 56; Hawes v. State, 88 Ala.
37, 7 South. 302; Reese v. State, 90 Ala. 624, 8 South. 818; Hornsby v. State, 94 Ala.
38 Nev. 64, 89 (1914) State v. Salgado
Hornsby v. State, 94 Ala. 55, 10 South. 522. Our statute, in attempting to define the import of
malice, sets forth:
Malice' and maliciously' shall import an evil intent, wish or design to vex, annoy or
injure another person. Malice may be inferred from an act done in wilful disregard of the
rights of another, or an act wrongfully done without just cause or excuse, or an act or
omission of duty betraying a wilful disregard of social duty. (Rev. Laws, sec. 6294, subd. 3.)
Murder, as defined by our statute, is the unlawful killing of a human being, with malice
aforethought, either expressed or implied. (Rev. Laws, sec. 6384.) Our statute defines express
malice as that deliberate intention unlawfully to take away the life of a fellow creature, which
is manifested by external circumstances capable of proof. In the case of State v. Lopez, 15
Nev. 408, this court, speaking through Mr. Chief Justice Beatty, held that under our statute
express malice necessarily renders any murder murder of the first degree. In fixing the
degrees of murder, our statute sets forth:
Malice shall be implied when no considerable provocation appears, or when all the
circumstances of the killing show an abandoned and malignant heart. (Rev. Laws, sec.
6386.)
Manslaughter, as defined by our statute, is the unlawful killing of a human being, without
malice express or implied, and without any mixture of deliberation. It must be voluntary,
upon a sudden heat of passion, caused by a provocation apparently sufficient to make the
passion irresistible, or involuntary, in the commission of an unlawful act, or a lawful act
without due caution or circumspection. (Rev. Laws, sec. 6387.) Under the provisions of our
statute, as I view them, the existence of express malice, when the same is proven to exist in
the mind of the slayer at the time of delivering the fatal blow, fixes the homicide as murder of
the first degree.
Irresistible passion, such as is contemplated by our statute to reduce a homicide from
murder to manslaughter, although aroused from different causes in different individuals,
may, however, spring into existence as a condition of mind on an instant's provocation.
38 Nev. 64, 90 (1914) State v. Salgado
individuals, may, however, spring into existence as a condition of mind on an instant's
provocation. While this may also be true with reference to that condition of mind depicted by
the term malice, nevertheless, as a general proposition, malice may be, and usually is, a
condition of mind brought about in the individual by a more prolonged train of thought. The
term malice necessarily implies previous consideration. This previous consideration,
however, may be one of but short duration or slight mental activity. It need not be a
consideration running through days, nor hours, nor even minutes. It may arise and be fostered
by the successive thoughts of the mind. It is a stream, so to speak, having its origin in the
fountains of hatred and revenge. Hatred and revenge are the handmaids of anger.
The record in this case presents a series of acts on the part of appellant which, although
taking place within a short interval of time, disclose a condition of mind on the part of
appellant which, in my judgment, warranted the giving of such an instruction as that
complained of here. Appellant and the deceased girl, Bessie Andy, had been for some years
prior to the homicide consorting together in and about the town of Elkocommonly
speaking, they were living together. Appellant is a Mexican; the deceased, Bessie Andy, was
an Indian girl. On the evening of the homicide, appellant and the deceased, together with the
father of the deceased and others, had partaken of a meal together at one of the restaurants in
Elko. The record discloses that during the course of the meal they had partaken of some
liquor.
Later, leaving the restaurant, they proceeded to cross the main street of the town of Elko,
going northward toward the Indian camp. After crossing the railroad track which runs through
the main street, the party of which appellant and the deceased girl were members met two
Indians. After some conversation in the Indian language between the deceased, Bessie Andy,
and one of the Indians, appellant attacked the deceased girl, threw her into a mud puddle in
the street, and was beating and abusing her when the other Indians interfered by
attacking him; and in the course of the melee the appellant drew his knife and pursued
one of the Indians across the street into the Pioneer saloon, at the entrance of which
place appellant stabbed the Indian, and was continuing in his pursuit when intercepted by
parties in the saloon.
38 Nev. 64, 91 (1914) State v. Salgado
her into a mud puddle in the street, and was beating and abusing her when the other Indians
interfered by attacking him; and in the course of the melee the appellant drew his knife and
pursued one of the Indians across the street into the Pioneer saloon, at the entrance of which
place appellant stabbed the Indian, and was continuing in his pursuit when intercepted by
parties in the saloon. Some one in the saloon caught hold of him and turned him around; he
passed out again through the door which he had just entered, and without a moment's
hesitation rushed into the street, passing several persons in his course, and made directly for
the deceased girl, and then and there plunged his knife into her body several times. The girl
fell, and death ensued almost instantly. The appellant ran away from the scene of the crime,
and when brought back to the scene of the murder, as few minutes later, denied that he was
the party who stabbed the girl. The knife with which appellant had done the stabbing was
later found some distance from the scene of the crime.
Whatever might have been the justification for his assault on the Indian, or whatever might
have been the provocation for his anger toward the Indian who engaged in conversation with
the deceased girl at the beginning of the trouble, his malice toward the girl was manifest
when after throwing her into the mud puddle and beating her, and after having pursued one of
the parties who assailed him into the saloon, he returned from the saloon and made directly
toward the girlthe object of his first and his last malicious assault. That he knew upon
whom he sought to reap vengeance, and recognized the party toward whom his malice was
directed, is manifest from the fact that, of all the persons in and about the place and on the
street in that immediate vicinity, he selected the girl to be the victim of his knife.
While I believe that the substance of this instruction and the law sought to be set forth
therein might have been better given in another form, nevertheless, in view of the evidence
set forth in the record in this case, it is my judgment that no prejudice resulted to the
appellant from the giving of this instruction.
38 Nev. 64, 92 (1914) State v. Salgado
of the evidence set forth in the record in this case, it is my judgment that no prejudice resulted
to the appellant from the giving of this instruction.
In my opinion, the judgment of the lower court and the order denying the appellant's
motion for a new trial should be affirmed.
____________
38 Nev. 92, 92 (1914) Ryan v. Manhattan Big Four Mining Co.
[No. 2096]
JOHN RYAN, Respondent, v. THE MANHATTAN BIG FOUR MINING COMPANY
(A Corporation), Appellant.
[145 Pac. 907]
1. Words and PhrasesPusherJigger Boss.
In mining parlance a pusher or jigger boss is one engaged for the purpose of encouraging or
hastening the men.
2. Master and ServantSafety AppliancesCages in MinesStatutory Provisions.
Rev. Laws, sec. 6799, making it unlawful to sink or work through any vertical mining shaft at a greater
depth than 350 feet unless the shaft is provided with an iron-bonneted safety cage to be used in lowering
and hoisting employees, was not complied with by having such a cage somewhere about the workings of a
mine without using it, though the employees did not demand its use.
3. Master and ServantSafety AppliancesCages in MinesStatutory Provisions.
A bucket and crosshead used in a mine for lowering and raising employees did not comply with Rev.
Laws, sec. 6799, requiring an iron-bonneted safety cage where a shaft is deeper than 350 feet, in view of
section 4222, which provides that the cages in shafts over 350 feet in depth shall be provided with
sheet-iron or steel casing not less than one-eighth inch thick, or with a netting composed of wire not less
than one-eighth in diameter, and with doors of the same material, provided, that when the cage is used for
sinking only it need not be equipped with the required doors, as this completely describes what is termed in
section 6799 an iron-bonneted safety cage.
4. Master and ServantSafety AppliancesCages in MinesStatutory Provisions.
That it was customary to work through and sink in vertical mining shafts by means of a crosshead and
bucket for raising and lowering employees did not justify a violation of Rev. Laws, sec. 6799, requiring the
use of an iron-bonneted safety cage; it not appearing that the apparatus used was generally and customarily
regarded as better or safer than that provided by the statute.
38 Nev. 92, 93 (1914) Ryan v. Manhattan Big Four Mining Co.
5. Master and ServantActions for InjuriesEvidence.
In an action for injuries to an employee in a mine caused by the failure to provide an iron-bonneted safety
cage as required by Rev. Laws, sec. 6799, evidence that the employer was unaware of the existence of such
statute was not admissible.
6. Master and ServantLiability for InjuriesAssumption of Risk.
An employee in a mine did not assume the risk of injury from an employer's failure to provide an
iron-bonneted safety cage for lowering and raising employees as required by statute, though the same
equipment was used for that purpose when he applied for and accepted employment as at the time of the
accident.
7. Master and ServantLiability for InjuriesProximate Cause.
An employer's noncompliance with Rev. Laws, sec. 6799, requiring the use of iron-bonneted safety cages
in mining shafts more than 350 feet deep, did not entitle an injured employee to damages, unless such
noncompliance was the proximate cause of his injuries, and unless a compliance therewith would have
avoided the accident and prevented the injuries.
8. Master and ServantLiability for InjuriesAssumption of RiskContributory
Negligence.
If a mining company's failure to provide an iron-bonneted safety cage for raising and lowering employees
as required by statute was found by the jury to be the proximate cause of injuries to an employee thrown
from the hoist in use, assumption of risk and contributory negligence were out of the case, except that
contributory negligence might be considered in mitigation of damages.
9. Appeal and ErrorReviewQuestions of Fact.
The jury's finding as to the cause of injuries to an employee in a mine, thrown from the bucket in which
he was riding, when supported by substantial evidence, will not be disturbed.
10. Master and ServantLiability for InjuriesProximate Cause.
The failure of a mining company to provide an iron-bonneted safety cage for raising and lowering
employees as required by Rev. Laws, sec. 6799, was the proximate cause of injuries to an employee thrown
from the bucket on which he was riding, though the swinging of the bucket against the sides of the shaft or
it entanglement with a bell cord were intervening agencies, as the culminating catastrophe would not have
happened in the absence of either the omission of the safety appliance or the intervening agencies, and
hence they operated concurrently.
11. Appeal and ErrorReviewAmount of Damages.
Where there was a substantial conflict as to the nature and duration of the injuries sued for, and the
amount of the verdict was reasonably supported by the evidence, the injured person testified as a witness,
the jury had ample opportunity to observe his manner, conduct, and condition, and he was
subjected to a long and careful cross-examination, the verdict will not be disturbed as
excessive.
38 Nev. 92, 94 (1914) Ryan v. Manhattan Big Four Mining Co.
to observe his manner, conduct, and condition, and he was subjected to a long and careful
cross-examination, the verdict will not be disturbed as excessive.
Appeal from the Fifth Judicial District Court, Nye County; Mark R. Averill, Judge.
Action by John Ryan against the Manhattan Big Four Mining Company. From a judgment
for plaintiff and an order denying a new trial, the defendant appeals. Affirmed.
Statement of Facts
[1] John Ryan, the respondent in this case, a miner of some eight or ten years' experience,
entered the employ of the appellant corporation as a miner in their property at Manhattan,
Nye County, Nevada, on or about the 1st day of June, 1912. The nature of his employment
was that of sinking a vertical shaft, and in that line of work he was a coworker with one
James Cushing and one John Pace. Cushing was acting in the capacity of pusher or jigger
boss, a term used in mining parlance to designate one who is engaged for the purpose of
encouraging, or hastening, the men. The shaft in which the respondent, Ryan, was employed
had attained a depth of approximately 500 feet on the 13th day of June, 1912, the day on
which respondent was injured. During all of the time that the respondent was engaged in the
employ of appellant company the means of lowering and raising the employees, of whom
respondent was one, from the surface to the bottom of the shaft, was a bucket and crosshead
at the end of a cable, lowered and raised by means of a gasoline hoist. For the purpose of
signaling the hoisting engineer on the surface, a bell cord extended from the surface, or
gallows frame on the surface, to the bottom of the shaft. This bell cord was a three-quarter or
seven-eighth inch rope.
On the 13th day of June the respondent and his coworkers went on shift at the usual hour,
and, pursuant to their duties, drilled and charged a round of holes, seven in number. For the
purpose of setting off the shots, hot irons were lowered from the blacksmith shop to "spit"
the fuse.
38 Nev. 92, 95 (1914) Ryan v. Manhattan Big Four Mining Co.
to spit the fuse. In order to get access to the fourteen lines of fuse running to the respective
holes, a signal was given, and the bucket, which had rested on the floor of the shaft, was
raised a little off the floor and held there by the engineer, awaiting further signal. After the
fuses were spit, the respondent, Ryan, and his coworkers, Pace and Cushing, mounted the
rim of the bucket in their customary way, and one of them, Cushing, gave the signal to hoist.
After they had ascended a distance of from fifteen to twenty feet, Ryan and Pace were thrown
from the bucket. Pace prevented himself from falling to the bottom of the shaft by grabbing
the timbers on the sides of the shaft. Respondent, Ryan, however, was thrown to the bottom
of the shaft, where fourteen lines of ignited fuse, connecting with the seven charged holes,
were burning. He succeeded, however, in climbing to the second set of timbers, and there
protected himself from the explosion which followed. As a result of the fall, the respondent
was more or less severely injured, receiving, among other things, a broken collarbone. After
the explosion the bucket was again lowered by Cushing, who had ascended to the 400-foot
level, and Ryan and Pace were picked up and taken to the surface. The respondent, Ryan,
received medical and surgical treatment for the injuries sustained. The testimony of plaintiff
himself is to the effect that since sustaining the injuries he has been unable to perform his
usual line of vocation, and has been unable to perform work incidental to his usual vocation,
by reason of the ill health caused directly and indirectly by the injuries sustained in falling to
the bottom of appellant's shaft.
The trial of this case before a jury in the court below resulted in a verdict and judgment for
the sum of $2,500 in favor of the respondent. From the judgment, and from the order denying
the motion for a new trial, appeal is taken.
H. R. Cooke, for Appellant.
P. M. Bowler, for Respondent.
38 Nev. 92, 96 (1914) Ryan v. Manhattan Big Four Mining Co.
By the Court, McCarran, J. (after stating the facts):
[2] The evidence presented by the record in this case as to the manner in which the
accident was caused out of which respondent sustained his injuries is conflicting. It was the
contention of respondent in the court below, and the case was tried solely upon the theory,
that the accident which resulted in the injury of respondent was brought about by reason of
the unstapled bell cord, swinging in the shaft, coming in contact with and in some manner
becoming entangled with the men, Pace and Ryan, while they were ascending on the rim of
the bucket, the contention being that entanglement with the bell cord caused Pace and Ryan to
be thrown from the rim of the bucket, the position and theory of the respondent being that the
accident was brought about by the wilful negligence of the appellant company in failing to
comply with the provisions of section 6799, Revised Laws of Nevada, which is as follows:
It shall be unlawful for any person or persons, company, or companies, corporation or
corporations, to sink or work through any vertical shaft at a greater depth than three hundred
and fifty feet, unless the said shaft shall be provided with an iron-bonneted safety cage, to be
used in the lowering and hoisting of the employees of such person or persons, company or
companies, corporation or corporations. The safety apparatus shall be securely fastened to the
cage and shall be of sufficient strength to hold the cage loaded at any depth to which the shaft
may be sunk. In any shaft less than three hundred and fifty feet deep where no safety cage is
used and where crosshead or crossheads are used, platforms for employees to ride upon in
lowering and hoisting said employees shall be placed above said crosshead or crossheads.
Any person or persons, company or companies, corporation or corporations or the managing
agent of any person or persons, company or companies, corporation or corporations, violating
the provisions of this section shall be deemed guilty of a misdemeanor, and upon conviction
thereof shall be fined in the sum of five hundred dollars, or imprisoned in the county jail for
a term of six months, or by both such fine and imprisonment."
38 Nev. 92, 97 (1914) Ryan v. Manhattan Big Four Mining Co.
or imprisoned in the county jail for a term of six months, or by both such fine and
imprisonment.
The evidence in this case discloses that an iron-bonneted safety cage was somewhere
about the workings of the mine, but not in use at any time during the period in which the
respondent, Ryan, was an employee of the appellant company. It is the contention of appellant
that inasmuch as this safety cage was on the premises, although not used for the purpose of
lowering and hoisting the employees while so engaged in sinking the shaft, the appellant
company had sufficiently complied with the law, nevertheless.
It is unnecessary for us to comment on the absence of evidence in the record as to the
condition of this safety cage, which appears to have been on the premises. It may or it may
not have been in working order; there is nothing in the record that would explain its condition
in this respect. But, aside from this phase of the question, which plays no part in the case, it is
our judgment that the contention of appellant with reference to this phase is untenable.
A statute is not susceptible of interpretation such as that which appellant would seek to put
upon it. Clearly, by the terms of the statute it is made unlawful to sink or work through any
vertical shaft at a greater depth than 350 feet, unless in the lowering and hoisting of
employees, in conducting such work or such sinking, the shaft be provided with an
iron-bonneted safety cage.
[3] It is unnecessary for us to dwell upon the fact that a bucket and crosshead such as that
which was used in the vertical shaft of appellant on the date on which respondent was injured
is not such an appliance as that which is contemplated by section 6799.
Section 4222, Revised Lawsbeing section 25 of an act entitled An act creating the
office of inspector of mines; fixing his duties and powers, etc.is as follows:
The cage or cages in all shafts over 350 feet in depth shall be provided with sheet-iron or
steel casing, not less than one-eighth inch thick, or with a netting composed of wire not less
than one-eighth inch in diameter and with doors made of the same material as the side
casing, either hung on hinges or working in slides.
38 Nev. 92, 98 (1914) Ryan v. Manhattan Big Four Mining Co.
wire not less than one-eighth inch in diameter and with doors made of the same material as
the side casing, either hung on hinges or working in slides. These doors shall extend at least
four feet above the bottom of the cage and must be closed when lowering or hoisting men,
except timbermen riding on the cage to attend to timbers that are being lowered or hoisted;
provided, that when such cage is used for sinking only, it need not be equipped with such
doors as are hereinbefore provided for. Every cage must have overhead bars of such
arrangement as to give every man on the cage an easy and secure handhold.
Reviewing this provision in conjunction with section 6799, a complete description of that
which is in the latter section termed an iron-bonneted safety cage is given; and in section
4222 special provision is made for the unusual necessities attendant upon the sinking of
shafts such as that which was being accomplished on the property of appellant company when
this accident occurred. In other words, the statute provides that, when such cage is used for
sinking only, it need not be equipped with such doors as are otherwise required. This special
provision was undoubtedly enacted by the legislature with a view to meeting the conditions
which are ever attendant where the work of sinking is being carried on. The mere having
upon the premises such an apparatus as that which is contemplated by section 6799 does not
meet the requirements of the law, where the master, in hoisting or lowering employees
working through a vertical shaft, makes no use of the appliance; and the mere fact that the
employees failed to demand such an appliance to be used in lowering or hoisting them
through the shaft, when it had attained a depth greater than 350 feet, does not relieve the
master of the force and effect of the statute. (Peabody-Alwert Coal Co. v. Yandell, 179 Ind.
222, 100 N. E. 758.) This statute is not only a penal statute in its nature, but it is a remedial
statute, intended not primarily to subject the violator to fine or imprisonment, but rather
intended to safeguard life and limb of those who, in the pursuit of their vocation, are called
upon to go into places where danger is attendant at every moment; and science and
practical experience have brought about this legislation, providing the designated
appliance as a practical fulfillment of the common-law rule that requires the master to
furnish reasonably safe appliance and a reasonably safe place with which and in which for
the servant to work.
38 Nev. 92, 99 (1914) Ryan v. Manhattan Big Four Mining Co.
those who, in the pursuit of their vocation, are called upon to go into places where danger is
attendant at every moment; and science and practical experience have brought about this
legislation, providing the designated appliance as a practical fulfillment of the common-law
rule that requires the master to furnish reasonably safe appliance and a reasonably safe place
with which and in which for the servant to work. The equipment prescribed being, in the
judgment of the legislative body, the best means for affording reasonable safety to the
employed, that equipment or its equivalent in safety efficiency is made obligatory on the
employer. (Miles v. Central Coal and Coke Co., 172 Mo. App. 229, 157 S. W. 867; Caspar
v. Lewin, 82 Kan. 604, 109 Pac. 657, 49 L. R. A. n.s. 526.) This statute was not enacted with
its primal object that of punishment for its violation, but the penalty imposed for the violation
was rather prescribed as a reminder that the law is a police regulation, enacted for the purpose
of minimizing casualties which entail suffering, privation, and death on those who may be the
unfortunate victims.
In order that the employer might know and realize the imperative character of the act,
criminal procedure was by the legislature made a method by which compliance with the
statutory provision should be enforced. The primal object and purpose of the statute, as we
have already said, was the safety of those whose vocation took them into such places of
employment; it was to prevent the unnecessary sacrifice of human life; and the unnecessary
infliction of human suffering upon those who become the victims of accidents such as the one
detailed in this record. This being the object of the law, this relief sought to be afforded by the
legislation, the contention that the apparatus contemplated by the law was on the premises,
and could have been demanded by the employees, in our judgment, falls far short of a
compliance with the spirit or the letter of the legislation. (Miles v. Central Coal and Coke
Co., supra.)
As was said in the case of Cheek v. Railway Co., 89 Kan.
38 Nev. 92, 100 (1914) Ryan v. Manhattan Big Four Mining Co.
Kan. 269, 131 Pac. 625: Whenever the law requires the employer himself to take a
precautionary measure for the safety of his employee, it is not enough that he make provision
for the performance of the act. The precautionary act itself must be performed.
[4] Appellant in this case sought, in the court below, to justify the use of the crosshead and
bucket by proving that it was customary to work through and sink in vertical shafts by such
apparatus; but we deem it sufficient to say, in this respect, that custom, however prevalent,
would not justify an employer in an act which disregards the specific provision of a statute. If
the means adopted by the master for caring for and protecting the servant in the performance
of his duty are generally and customarily regarded as being better or more liable to insure
safety than that which is provided by the statue, then a different rule might prevail; but such
cannot, we apprehend, be contended for by appellant in this case. (Cheek v. Railway Co.,
supra; Miles v. Central Coal and Coke Co., supra.)
[5] Appellants sought to prove, in the court below, that they were unaware of the existence
of the statute requiring iron-bonneted safety cages to be used in vertical shafts of a greater
depth than 350 feet; but, in our judgment, no error could be assigned to the trial court if it
refused to admit such evidence. (Odin Coal Co. v. Denman, 185 Ill. 413, 57 N. E. 192, 76
Am. St. Rep. 45.) It has been held that an inadvertent failure to comply with the provisions of
a statute similar to this is no less a defense than is an intentional evasion thereof. (Island Coal
Co. v. Swaggerty, 159 Ind. 664, 62 N. E. 1103; Princeton Coal Mining Co. v. Lawrence, 176
Ind. 469, 95 N. E. 423; Diamond Block Coal Co. v. Cuthbertson, 166 Ind. 290, 76 N. E.
1060; Peabody-Alwert Coal Co. v. Yandell, supra.) It has been held, as a general proposition,
that whenever an act is enjoined or prohibited by law, and the violation of the statute is made
a misdemeanor, any injury to the person of another, caused by such violation, is the subject of
an action, and that the violation of the law is the basis of the right to recover, and
constitutes negligence per se.
38 Nev. 92, 101 (1914) Ryan v. Manhattan Big Four Mining Co.
of the right to recover, and constitutes negligence per se. (Messenger v. Pate, et al., 42 Iowa,
443.)
In the case of McRickard v. Flint, et al., 114 N. Y. 222, 21 N. E. 153, the Court of Appeals
of New York had under consideration a case growing out of the violation of a statute of the
State of New York which provided that:
In any store or building in the city of New York in which there shall exist or be placed
any hoistway, elevator, or wellhole, the openings thereof, through and upon each floor of said
building, shall be provided with and protected by a substantial railing, and such good and
sufficient trapdoors with which to close the same as may be directed and approved by the
superintendent of buildings, and such trapdoor shall be kept closed at all times except when
in actual use by the occupant or occupants of the building having the use and control of the
same.
The trial court in that case instructed, in substance, that any one constructing or using an
elevator upon his premises is considered as doing so with knowledge of the law in that
respect, and, if such person fails to comply with the requirements of the statute, he is prima
facie guilty of negligence. The court of appeals held that, as an abstract proposition, there was
no error in the charge, as it had reference to the failure to perform a statutory duty. Holding to
the same general effect is the case of Siven v. Temiskaming Mining Co., 25 Ont. Law Rep.
524.
[6] It is the contention of appellant that, inasmuch as the equipment used for lowering and
raising employees from the bottom of the shaft was the same when he applied for
employment and accepted such employment as it was on the 13th day of June, the date of the
accident, that therefore he assumed the risk attendant upon the use of such equipment. This
position, in our judgment, cannot be maintained; and in this respect we quote approvingly
from the case of Carterville Coal Co. v. Abbott, 181 Ill. 495, 55 N. E. 131:
Where an owner, operator, or manager so constructs or equips his mine that he knowingly
operates it without conforming to the provisions of this act, he willfully disregards its
provisions, and willfully disregards the safety of miners employed therein.
38 Nev. 92, 102 (1914) Ryan v. Manhattan Big Four Mining Co.
disregards its provisions, and willfully disregards the safety of miners employed therein.
Where such owner, operator, or manager willfully disregards a duty enjoined on him by
legislation of this character, and places in danger the life and limbs of those employed therein,
he cannot say that, because one enters a mine as a miner with knowledge that the owner has
failed to comply with his duty, he is guilty of contributory negligence. Neither can it be said
that, by using the means provided by the owner, operator, or manager for entering the shaft,
the miner is guilty of contributory negligence. Mere contributory negligence on the part of a
miner will not defeat a right of recovery where he is injured by the willful disregard of the
statute, either by an act of omission or commission, on the part of the owner, operator, or
manager. To hold that the same principle as to contributory negligence should be applied in
case of one who is injured in a mine because the owner, operator, or manager totally
disregarded the statute, as in other cases of negligence, is to totally disregard the provisions of
the constitution, which are mandatory in requiring the enactment of this character of
legislation, and would destroy the effect of the statute, and in no manner regard the duty of
protecting the life and safety of miners.
In applying and construing statutes such as this, courts cannot and should not close their
eyes to the primary calculated object and purpose of the act itself, namely, minimizing, so far
as legislation can minimize, the opportunity for injury to those required to perform service
where latent danger is ever present. The statute under consideration in the Carterville-Abbott
case, supra, was one growing out of a specific constitutional provision of the State of Illinois.
While our constitution contains no such provision, the statute in question here is a wholesome
police regulation, enacted for a humane object; and the reasoning set forth in the
Carterville-Abbott case, supra, is none the less applicable.
The Supreme Court of Illinois, in considering this question under a somewhat similar
condition, said:
The rule that the servant assumes the ordinary risks incident to the business
presupposes that the master has performed the duties of caution, care, and vigilance,
which the law casts upon him.
38 Nev. 92, 103 (1914) Ryan v. Manhattan Big Four Mining Co.
incident to the business presupposes that the master has performed the duties of caution, care,
and vigilance, which the law casts upon him. It is these risks alone, which cannot be obviated
by the adoption of reasonable measures of precaution by the master, that the servant assumes.'
* * * The law is that the servant does not assume risks that are unreasonable or extraordinary,
* * * nor risks of the master's own negligence. (City v. Kostka, 190 Ill. 135, 60 N. E. 72;
Great Western Coal and Coke Co. v. Coffman, 143 Pac. 30; Great Western Coal and Coke
Co. v. Cunningham, 143 Pac. 26.)
The Supreme Court of Illinois, in a number of cases, held consistently that any conscious
omission or failure of an employer to comply with a statute which requires of him that he
furnish certain reasonable appliances for the protection of life and limb of the employed
renders him liable for ensuing injuries. (Donk Bros. Coal and Coke Co. v. Peton, 192 Ill. 41,
61 N. E. 330; Carterville Coal Co. v. Abbott, supra; Odin Coal Co. v. Denman, supra; Donk
Bros. Coal Co. v. Stroff, 200 Ill. 483, 66 N. E. 59.)
[7] In determining whether or not the plaintiff, respondent herein, was entitled to damages
for the injuries sustained, the failure on the part of the defendant company to provide the
safety appliances prescribed by statute, while a vital question to be determined by the jury,
was not the principal question. The principal fact to be determined was as to whether of not
the noncompliance with the statute on the part of an employer and its failure to afford that
protection which the statute intended to be afforded to the employed was responsible for the
accident in which the employed was injured. In other words, the mere noncompliance with
the statute on the part of the appellant company would not entitle the respondent to damages
for injuries sustained unless the noncompliance with the statute furnished the proximate cause
of the accident, and unless a compliance with the statute would have avoided the accident and
saved the respondent from the injuries.
[8] This was a question of fact to be determined from all of the evidence presented at the
trial of the case.
38 Nev. 92, 104 (1914) Ryan v. Manhattan Big Four Mining Co.
all of the evidence presented at the trial of the case. It was one for the jury to determine. If the
jury found, as they undoubtedly did find in this case, that, but for the failure on the part of the
employer to provide the safety appliance which the statute prescribed should be provided and
used, the respondent would not have been thrown to the bottom of the shaft and thereby
injuredif the jury found this as a factthen the elements of assumed risk and contributory
negligence were out of the case (Odin Coal Co. v. Denman, supra), excepting, however, that
the defense of contributory negligence might be considered by the jury, under proper
instructions for the purpose of mitigating damages. (Cameron v. Pacific G. & G. Co., 144
Pac. 446; Love v. Chambers Lumber Co., 64 Or. 129, 129 Pac. 492.)
It is the contention of respondent that the bell cord from the collar to the floor of the shaft
was not properly stapled, and hung loose and unfastened from the 400-foot level to the point
where respondent was working, and that, in ascending the shaft after having spit the fuse,
respondent and his coworkers became entangled with the bell cord, and due to this, Pace, the
coworker of respondent, was thrown off the bucket, and in being thrown off he so engaged
respondent as to drag respondent with him, the latter falling to the bottom of the shaft and
sustaining the injuries mentioned.
The record discloses a very sharp conflict in the evidence as to what did really happen as
respondent and his coworkers ascended the shaft, standing, as they were, on the rim of the
bucket. Appellants contend, and there is some evidence in the record which bears out their
contention, that in mounting the bucket the men caused it to swing from side to side in the
shaft, and, after having signaled the engineer to hoist, the bucket struck the timbers on the
sides of the shaft, and respondent and Pace were thereby thrown off.
[9] As to whether or not the contention of respondent in this respect was correct was one
of fact for the jury to determine; and, there being, in our judgment, substantial evidence to
support this contention, we would not disturb their findings in this respect.
38 Nev. 92, 105 (1914) Ryan v. Manhattan Big Four Mining Co.
determine; and, there being, in our judgment, substantial evidence to support this contention,
we would not disturb their findings in this respect.
[10] It might be observed, however, that even though the contention of appellant be correct
that respondent was thrown off by reason of the bucket striking the timbers on the sides of the
shaft, the jury, in our judgment, would have been warranted in finding that, had a safety cage
been provided for conveying respondent and his coworkers to the surface, the impossibility,
or at least improbability, of such an accident would be manifest. It is the contention of
appellant that the bell rope, and not the absence of a safety cage, was the proximate cause of
the accident.
In the case of Konig v. The Nevada-California-Oregon Railway, 36 Nev. 220, 135 Pac.
155, we said:
However difficult it may be, in the first instance, to formulate a proper definition of
proximate cause, and, in the second instance, to apply such definition to a set of facts, one
general rule is applicable to all cases, regardless of the facts that may be presented in any
particular case, and that is, where the evidence discloses a succession of events so linked
together as to make a natural whole, and all so connected with the first event as to be in legal
contemplation the natural result thereof, the latter will be deemed the primary cause of
proximate cause,' as it is more often termed. There may be concurrent circumstances, and
there may be intervening agencies, and one of the intervening agencies may be the acts of the
party injured; but if the culminating fact, or the resultant catastrophe, came about by reason of
all these agencies working together concurrently, then the first negligent act is, and should
properly be, deemed the proximate cause.
If, as is contended for by appellant, the bell rope was the proximate cause of the accident,
or if, as might be contended, the swinging of the bucket and its impact against the timbers on
the sides of the shaft caused the accident, in either event it was within the province of the
jury to determine as to whether or not either entanglement with the bell cord or contact
with the timbers on the sides of the shaft could have occurred if the safety appliance
prescribed by the statute were in use; and if the jury determined, as they undoubtedly did
determine in this case, that the accident would not have happened had the respondent,
Ryan, been ascending in an iron-bonneted safety cage such as that required by the
statute, their determination in this respect, being, in our judgment, supported by
substantial evidence, will not be disturbed.
38 Nev. 92, 106 (1914) Ryan v. Manhattan Big Four Mining Co.
accident, in either event it was within the province of the jury to determine as to whether or
not either entanglement with the bell cord or contact with the timbers on the sides of the shaft
could have occurred if the safety appliance prescribed by the statute were in use; and if the
jury determined, as they undoubtedly did determine in this case, that the accident would not
have happened had the respondent, Ryan, been ascending in an iron-bonneted safety cage
such as that required by the statute, their determination in this respect, being, in our judgment,
supported by substantial evidence, will not be disturbed. As we have already stated, it is not
sufficient in an action of this kind to establish merely a willful omission of the statutory duty.
It is necessary to establish that the injury complained of resulted from the omission; in other
words, that the omission was the proximate cause of the injury. (Odin Coal Co. v. Denman,
supra.) In this instance there may have been intervening agencies, and these may have been
the swinging of the bucket, or entanglement with the bell cord, or both. But the culminating
catastrophe would not have happened in the absence of either the primary omission of the
safety appliance or the intervening agencies; hence they operated concurrently; hence, the
primary negligencethe omission of the safety cagemust be deemed to be the proximate
cause of the injury of respondent. (Konig v. Nevada-California-Oregon Ry., supra.)
A number of assignments of error are asserted by the appellant, relative to instructions
given by the trial court; but, in view of our consideration of the law applicable to this case, we
deem it unnecessary to dwell upon these. Suffice it to say that we find no error in the
instructions as given. Many of the instructions offered by the appellant, and refused by the
trial court, were not properly applicable to this case, in view of the law governing its various
phases.
[11] It is the contention of appellant that the verdict in this case is excessive, and that the
jury were actuated by passion and prejudice in finding the amount. The evidence showed
that the plaintiff, respondent herein, had for some years prior to the accident followed
mining as a general vocation.
38 Nev. 92, 107 (1914) Ryan v. Manhattan Big Four Mining Co.
evidence showed that the plaintiff, respondent herein, had for some years prior to the accident
followed mining as a general vocation. His specific vocation, in most instances, in so far as
the record discloses, was that of manual laborer. The evidence, and especially that coming
from the plaintiff, tended to establish that, subsequent to the accident in which he sustained
the injuries, he was unable to perform work required of miners, such as he had been
accustomed to perform prior to the accident. There is nothing in the record from which we
could even assume that the jury acted other than with cool, calculating impartiality. The
respondent was a witness at the trial in his own behalf. The jury had ample opportunity to
observe his manner, conduct, and condition. He was subjected to a long and careful
cross-examination by the skilled attorney for appellant. If his testimony brought home to the
minds of the jury a belief that his injuries, even though they might not be permanent, were at
least debilitating, painful, and long-continued, then it was for them, the jury, acting under
proper instructions, to assess the damages. On this particular phase, the record discloses a
most substantial conflict as to the nature and duration of the injuries sustained by respondent;
but it is our judgment that the verdict is reasonably supported by the evidence, and it will
therefore not be disturbed. (Muskogee Electric Traction Co. v. Mueller, 39 Okl. 63, 134 Pac.
51; Nilson v. Kalispell, 47 Mont. 416, 132 Pac. 1133; Pasarel v. Anderson, 74 Wash. 312,
133 Pac. 441; Bateman v. Middlesex, 27 Ont. Law Rep. 122; Railroad Co. v. Osborne, 149 S.
W. 954; Railroad Co. v. Limberg, 152 S. W. 1180.)
It follows from the foregoing that the judgment of the lower court, entered pursuant to the
verdict, and the order of the lower court denying appellant's motion for a new trial, should be
sustained.
It is so ordered.
On Petition For Rehearing
Per Curiam:
Rehearing denied.
____________
38 Nev. 108, 108 (1914) State v. Switzer
[No. 2148]
STATE OF NEVADA, Respondent, v. WILLIAM
SWITZER, Appellant.
[145 Pac. 925]
1. RobberyIndictmentIntentFeloniously.
An information, substantially following the form of the statute, charging that defendant willfully,
unlawfully, and feloniously took from a person certain goods and chattels of such person, was not defective
because not specifically charging a taking with an intent to commit a larceny; the word feloniously being
a sufficient averment of the intent necessary to constitute the offense.
2. Indictment and InformationLanguage of StatuteRobbery.
An indictment charging robbery in the language of the statute is sufficient.
3. Criminal LawTrialRequest for Instructions.
Where the court defines the crime in the language of the statue, defendant desiring a more particular
instruction should request it.
4. JuryObjections to PanelTime for Interposing.
Under Rev. Laws, sec. 7134, providing that a challenge to the panel must be taken before a juror is
sworn, an objection to the panel, first made after the jury was sworn, on the ground that the court had
issued a second venire after excusing a portion of the first venire, came too late.
5. JuryExcusing JurorsSecond VenireTwo Judges.
Under Rev. Laws, sec. 4903, providing that the two judges of the district court shall have concurrent and
coextensive jurisdiction, one judge of the district court has power to excuse jurors and to issue a second
venire to fill out the panel.
6. Criminal LawReviewPresumptions.
In the absence of a showing in the record of the grounds on which jurors impaneled were excused, it will
be presumed on appeal that the court properly exercised its discretion.
7. JuryChallenge to PanelGrounds.
Under Rev. Laws, sec. 7133, providing that a challenge to the panel can be founded only on a material
departure from the forms prescribed by statute in respect to the drawing and return of the jury, or on the
intentional omission of the proper officer to summon one or more of the jurors, an objection to the panel,
on the ground that the court having summoned a panel of jurors excused a portion of them and issued a
second venire, is not well taken.
8. RobberyEvidencePossession of Weapon.
Evidence that defendant, a few days prior to the alleged robbery, had in his possession a revolver similar
in appearance to that used in the commission of the robbery and found on his person on his arrest a few
days after the offense was committed, was admissible.
38 Nev. 108, 109 (1914) State v. Switzer
9. Criminal LawEvidenceOther Offenses.
Such evidence was not within the rule prohibiting evidence of a separate and distinct crime unconnected
with that for the commission of which the defendant was on trial, where there was nothing to show that at
the time witnesses saw the revolver in defendant's possession he was engaged in the commission of any
criminal offense.
Appeal from Second Judicial District Court, Washoe County; Thos. F. Moran, Judge.
William Switzer was convicted of robbery, and he appeals. Affirmed.
Thomas E. Kepner, for Appellant.
Geo. B. Thatcher, Attorney-General, for the State.
By the Court, Norcross, J.:
The appellant was convicted of the crime of robbery, and appeals form the judgment and
from an order denying a motion for a new trial.
[1] It is contended by counsel for appellant that the information is fatally defective because
of the absence of a specific charge that the property was taken with intent to commit a
larceny. The information charges that the defendant did willfully, unlawfully, and
feloniously take from the person of and in the presence of Jack Vera * * * of the personal
goods and chattels of the said Jack Vera, etc.
In State v. Hughes, 31 Nev. 274, 102 Pac. 563, we said: The word feloniously,' used in
the body of the indictment, in a legal sense, means, done with intent to commit crime.' Its use
in an indictment has uniformly been held to be a sufficient averment of the intent necessary to
constitute the crime.
[2] The indictment follows substantially the form of the statute, and an indictment in the
identical form, so far as the question here raised is concerned, was held to be sufficient in
State v. Luhano, 31 Nev. 278, 102 Pac. 260. See, also, State v. O'Neal, 71 Minn. 399, 73 N.
W. 1091; Holland v. State, 8 Ga. App. 202, 68 S. E. 861; State v. Henry, 47 La. Ann. 1587,
18 South. 638.
38 Nev. 108, 110 (1914) State v. Switzer
As said by Hawley, J., in State v. McKiernan, 17 Nev. 224, 30 Pac. 831:
The technical exactness which existed under the rules of the common law has been
superseded by statutory provisions, and it is now sufficient if the offense is clearly and
distinctly set forth in ordinary and concise language * * * in such a manner as to enable a
person of common understanding to know what is intended.'
Notwithstanding the many authorities cited by counsel for appellant, holding that an
indictment for robbery must specifically charge an intent to commit a larceny, we are not
disposed to change the former ruling of this court that the indictment is sufficient. The
defendant could not have been misled to his injury by the form of the indictment.
[3] The same reasoning will apply to the instruction defining the offense in the language of
the statue. If defendant had felt that a more particular instruction should have been given, he
should have requested it.
[4] It is next urged that the court erred in denying defendant's challenge to the jury panel. It
appears from the record that this challenge was not interposed until after twelve of the jurors
were called to the jury box and sworn for their examination. Section 284 of the criminal
practice act (Rev. Laws, sec. 7134) provides: A challenge to the panel must be taken before
a juror is sworn. The objection to the panel was upon the ground that two venires were
drawn, one on the 5th of August and one on the 7th of August, the first venire containing
thirty names and the second fifteen names; that only thirty were in attendance, a portion of
both venires; that both venires were drawn and made returnable in the chamber of the court
presided over by Judge Salisbury.
[5-7] The venires in question are not embodied in the record. It does not appear upon what
day they were made returnable. It appears, however, to have been conceded that upon the
return of the first venire a number were excused, and that Judge Salisbury then considered
that there was not a sufficient number remaining for the purposes of the court, and that,
consequently, an additional venire was drawn and returned.
38 Nev. 108, 111 (1914) State v. Switzer
for the purposes of the court, and that, consequently, an additional venire was drawn and
returned. While the Second judicial district court has two judges, there is but one court; the
two judges thereof having concurrent and coextensive jurisdiction. (Rev. Laws, sec. 4903.)
The district court has power to excuse jurors from attendance. (Rev. Laws, sec. 4933.) There
is no showing or contention that this power was abused or any showing as to the grounds
upon which jurors impaneled were excused. The presumption, of course, is that the court
properly exercised its discretion. Finally, the objection does not go either to the drawing or
the return of the jury panel. Section 283 of the criminal practice act (Rev. Laws, sec. 7133)
provides:
A challenge to the panel can be founded only on a material departure from the forms
prescribed by statute in respect to the drawing and return of the jury, or on the intentional
omission of the proper officer to summon one or more of the jurors drawn.
The court did not err in denying the challenge to the panel.
[8-9] Error is assigned in admission, over defendant's objection, of the testimony of two
witnesses for the state. These two witnesses testified to seeing a revolver in the possession of
defendant about four days prior to the alleged robbery, described its appearance, and, when
shown state's Exhibit A, the revolver taken from defendant at the time of his arrest and
previously testified to by the complaining witness as similar to the one used upon him the
night of the alleged robbery, testified that it was similar in appearance to the revolver they
had seen in defendant's possession on the previous date. The witnesses testified to seeing the
revolver in the possession of defendant at the car barn of the Reno Traction Company about 4
or 5 o'clock of the afternoon of July 7. One of the two witnesses, C. S. Nichols, testified that
he was a member of the Reno police force dressed at the time in citizen's clothes. There was
nothing in the testimony of the witnesses showing, or tending to show, that at the time they
saw the revolver in defendant's possession the latter was engaged in the commission of
any criminal offense, was under arrest, or was exhibiting the revolver in any other than a
lawful manner.
38 Nev. 108, 112 (1914) State v. Switzer
that at the time they saw the revolver in defendant's possession the latter was engaged in the
commission of any criminal offense, was under arrest, or was exhibiting the revolver in any
other than a lawful manner. There is nothing in the testimony objected to which brings it
within the general rule prohibiting the introduction of evidence of an entire, separate, and
distinct crime unconnected with the crime for the commission of which the defendant is on
trial.
It was an evidentary circumstance, proper to be considered together with other evidence
and evidentiary circumstances in the case, that defendant , a few days prior to the robbery,
had in his possession a revolver similar in appearance to that used by the robber in the
commission of the robbery and found on the person of defendant at the time of his arrest a
few days after the offense was committed. (People v. Oldham, 111 Cal. 654, 44 Pac. 312.)
Judgment affirmed.
____________
38 Nev. 112, 112 (1914) State v. Tax Commission
[No. 2153]
THE STATE OF NEVADA, Ex Rel. CENTRAL PACIFIC RAILWAY COMPANY
(A Corporation), Relator v. THE NEVADA TAX COMMISSION, Respondent.
[145 Pac. 905]
1. TaxationAssessmentValuationStatutes.
Rev. Laws, sec. 3624, directing the assessor to determine the true cash value of the property, does not
control section 3838, subsequently enacted, which provides that no patented or state contract land shall be
assessed for less than $1.25 per acre.
2. TaxationAssessmentValuationStatutesCash Value.
Stats. 1913, c. 134, creating a state tax commission with power to district the state geographically in
assessment districts according to relative uniformity of land valuation, and establish minimum acreage
valuations for the classes in each district, and that if, in the opinion of the commission, any tract, by reason
of special conditions, would be improperly assessed by the application of the classified acreage valuations,
the tract may be excluded therefrom and specially appraised, and providing that property shall be assessed
at its true full "cash value," defined to mean the valuation in money which an investor in
such character of property would be reasonably willing to pay therefor, implies that
the commission may fix the valuation lower than the minimum of $1.25 per acre, as
fixed by Rev. Laws, sec.
38 Nev. 112, 113 (1914) State v. Tax Commission
cash value, defined to mean the valuation in money which an investor in such character of property
would be reasonably willing to pay therefor, implies that the commission may fix the valuation lower than
the minimum of $1.25 per acre, as fixed by Rev. Laws, sec. 3838, and an owner feeling aggrieved on the
ground that the minimum is too high, may appear before the commission and prove that the cash valuation
is less than the minimum, and, on the commission so finding, they must make a deduction in the valuation
accordingly, and to this extent section 3838 is superseded, but it still applies to county assessors making the
original assessment.
3. StatutesConstruction.
Two statutes on the same subject must be construed together, so as to give effect to the language of both,
as far as consistent, and where a conflict is apparent, the later statute controls.
4. Constitutional LawValidity of StatutesNecessity for Adjudication.
Constitutional questions, not necessary for an adjudication of the rights of the parties, will not be
determined.
Original proceeding. Application for writ of mandate by the State, on the relation of the
Central Pacific Railway Company, against the Nevada Tax Commission and others. Writ
granted.
Brown & Belford, for Relator.
Geo. B. Thatcher, Attorney-General, for Respondents.
By the Court, Talbot, C. J.:
In its application for a writ of mandate, directing respondents, as Nevada tax Commission,
to give relator a hearing and allow the introduction of evidence regarding the value for
taxation of relator's lands, granted by act of Congress July 2, 1864 (13 Stat. 365, c. 217), to
aid in the construction of the Central Pacific Railroad, it is in effect alleged: That the Central
Pacific Railway Company owns and for the year 1914 has returned to the assessor of
Churchill County for assessment 246,607.91 acres of patented lands and 132,228.60 acres of
unpatented lands, situated in Churchill County; that the assessor assessed the patented lands
at $2.50 per acre and unpatented lands at $1.25 per acre, producing an aggregate
assessment of $71S,S0S upon the lands of petitioner in that county; that thereafter, and
on September 2S, 1914, petitioner appeared before the board of county commissioners of
Churchill County, sitting as a board of equalization, and filed two written applications for
the reduction of the assessed valuations as fixed by the assessor, and offered testimony
as to the value of these lands.
38 Nev. 112, 114 (1914) State v. Tax Commission
an aggregate assessment of $718,808 upon the lands of petitioner in that county; that
thereafter, and on September 28, 1914, petitioner appeared before the board of county
commissioners of Churchill County, sitting as a board of equalization, and filed two written
applications for the reduction of the assessed valuations as fixed by the assessor, and offered
testimony as to the value of these lands. On a large part and more than 100 sections of the
lands assessed at $2.50 per acre, or $1,600 per section of 640 acres, and the lands assessed at
$1.25 per acre, or $800 per section, the company asked to have the assessed valuation
reduced to $10 per section. The board refused to consider the petitions for the reason given by
the board that section 3838 of the Revised Laws of Nevada requires that the minimum value
placed on all lands for assessment purposes shall be $1.25 per acre.
On October 13, 1914, petitioner presented its petition in writing to the Nevada Tax
Commission, asking for the reduction of the assessment on the lands in Churchill County,
described in the petitions presented to the county board of equalization, to values of less than
$1.25 per acre. The commission refused to hear the petition, for the reason, as entered in its
minutes, that it appeared to the commission that section 3838 of the Revised Laws requires
that the minimum value placed on all lands for assessment purposes shall be $1.25 per acre.
On behalf of the relator, it is urged that section 3838 of Revised Laws, in so far as it
provides that all lands shall be assessed at not less than $1.25 per acre, is in conflict with
section 3624 of Revised Laws and in conflict with section 8 of the act of the last legislature
creating the Nevada Tax Commission (Stats. 1913, c. 134), and is also unconstitutional
because it does not meet the requirement of uniformity under section 1 of article 10 of the
state constitution, and also in conflict with section 1 of the fourteenth amendment to the
constitution of the United States in that it deprives relator of property without due process of
law, and denies to relator and all other owners of land within the state, whose value is less
than $1.25 per acre, the equal protection of the laws.
38 Nev. 112, 115 (1914) State v. Tax Commission
value is less than $1.25 per acre, the equal protection of the laws.
[1] Section 3624 of the Revised Laws of Nevada, as amended in 1893, which directs that
the assessor shall determine the true case value of the property, is not regarded as controlling
section 3838, which was passed in 1911, and which provides that no patented or state contract
land shall be assessed for less than $1.25 per acre.
[2] It is more important to consider the provisions of the act of 1913, creating the Nevada
Tax Commission, and defining its powers and duties. Section 5 of this act provides that the
commission may district the state geographically in land assessment districts * * * according
to relative uniformity of land valuations, and establish minimum acreage valuations for such
classes in each such district; provided, that if in the opinion of said commission any tract of
land, by reason of special conditions would be improperly assessed by the application of such
classified acreage valuations, such tract may be excluded therefrom and specially appraised.
Section 8 of the same act provides that all property subject to taxation shall be assessed at
its full cash value, and defines the term cash value to mean the valuation in money which
an investor in such character of property would be reasonably willing to pay therefor in order
to acquire ownership. We are not unmindful that an earlier special provision may control a
later general one. But, as between the two special provisions relating to the minimum acreage
valuation, we conclude that the one passed by the last legislature, and providing that the
commission may fix such minimum valuation, and specially appraise lands, controls or
supersedes, so far as the duties and powers of the commission are concerned, the act of the
prior legislature which fixed the minimum valuation of all lands at $1.25 per acre. As that
was the minimum price fixed by the general government and by the state for the sale of lands,
the legislature of 1911 may have concluded that all patented or contract land was worth at
least that much.
38 Nev. 112, 116 (1914) State v. Tax Commission
was worth at least that much. Without modification, the statute still stands directing the
assessor in the first instance to assess all lands at not less than $1.25 per acre.
Section 5 of the act of 1913 authorizes the commission, but not the assessor, to fix the
minimum acreage valuation, which implies that the commission may fix it lower than $1.25
per acre. It follows that any owner, feeling aggrieved and that the minimum of $1.25 is too
high, should be allowed to appear before the commission and prove that the cash valuation on
his land is less than $1.25 per acre, and, if the commission finds that the land is worth less
than such minimum, a deduction in the valuation should be made accordingly.
[3] The two acts of the legislature should be construed together, so as to give effect to the
language of both, as far as consistent, and, where a conflict is apparent, the later statute will
control. (State v. LaGrave, 23 Nev. 373, 48 Pac. 193, 674; Hettel v. District Court, 30 Nev.
382, 96 Pac. 1062, 133 Am. St. Rep. 731; State v. Martin, 31 Nev. 493, 103 Pac. 840; Ex
Parte Prosole, 32 Nev. 378, 108 Pac. 630; State v. Glenn, 18 Nev. 34, 1 Pac. 186.)
The act of 1911 may stand, so far as it applies to county assessors making the original
assessment at a minimum of $1.25 per acre, because there is nothing in the later act varying it
in this regard; but as the Nevada Tax Commission, a final board of equalization, is authorized
by the act of 1913 to establish minimum acreage valuations and specially appraise lands, it is
the duty of the commission to fix the proper minimum valuation at the full cash value,
although this may be less than $1.25 per acre.
[4] Following precedent, the constitutional questions involved are not determined because
not necessary for an adjudication of petitioner's right to the writ.
By reason of these views, the court has directed the commission to hear the proofs of
petitioner regarding the valuations of the lands and to fix the valuations in accordance with
the proofs.
____________
38 Nev. 117, 117 (1914) Fapp v. McQuillan
[No. 1958]
MRS. J. W. FAPP and J. W. FAPP (Her Husband), Respondents, v. J. S. McQUILLAN and
C. F. WITTENBERG, Doing Business Under the Firm Name of WITTENBERG
WAREHOUSE COMPANY, Appellants.
[145 Pac. 962]
1. Claim and DeliveryReplevinDefenses.
In an action in claim and delivery to recover possession of personalty, which defendants held as
warehousemen, proof that whatever interest they had as such had been transferred to a corporation which
succeeded to the business is a good defense.
2. Claim and DeliveryReplevinNecessary Parties.
In claim and delivery to recover personalty held by warehousemen, the successors to the business, as well
as the one whom the warehousemen asserted was the owner, are necessary parties.
Appeal from the Fifth Judicial District Court, Nye County, Mark R. Averill, Judge.
Action by Mrs. J. W. Fapp and husband against J. S. McQuillan and C. F. Wittenberg,
copartners doing business as the Wittenberg Warehouse Company. From a judgment for
plaintiffs, and an order denying new trial, defendants appeal. Reversed and remanded.
McIntosh & Cooke, for Appellants.
D. S. Truman and J. A. Sanders, for Respondents.
By the Court, Norcross, J.:
This was an action in claim and delivery of personal property to recover possession of
certain mining machinery alleged to be the property of the plaintiff, Mrs. J. W. Fapp, and
wrongfully detained by respondents. Judgment was for the plaintiffs. From the judgment and
from the order denying a motion for a new trial, the defendants have appealed.
[1] The answer denied that the defendants, appellants herein, were copartners as alleged in
the complaint or were such copartners subsequent to the 13th day of September, 1907. The
answer further denied that plaintiffs, or either of them, were owners of or entitled to the
property in question.
38 Nev. 117, 118 (1914) Fapp v. McQuillan
property in question. The answer further alleged that the property in question, at the time of
filing the complaint, and for a long time prior thereto, was and now is the property of one F.
E. Attux; that prior to the time of filing the suit the defendants transferred all their interests as
copartners to a corporation, duly formed under the laws of the State of Nevada, and named
the Wittenberg Warehouse and Transfer Company, which said corporation at the time of
bringing the action was and ever since has been in the actual possession of said property.
It appears from the record that respondents contended at the trial that the said Attux,
having or claiming to have an interest in the property as owner thereof, and the said
corporation, Wittenberg Warehouse and Transfer Company, should be made parties and be
brought into the case. The court declined to make an order of this character. The evidence
appears, without conflict, to show that whatever interest the defendants had in the property as
warehousemen was, prior to the institution of the action, transferred to the Wittenberg
Warehouse and Transfer Company, a corporation. Upon this showing judgment should have
been for the defendants. (Gardner v. Brown, 22 Nev. 156, 37 Pac. 240.)
[2] We think it also clear that F. E. Attux and the Wittenberg Warehouse and Transfer
Company were necessary parties to the proceeding. (Robinson v. Kind, 23 Nev. 330, 338, 47
Pac. 1, 977.)
A number of other questions have been argued in the briefs which are unnecessary now to
determine.
The judgment and order are reversed, and the cause remanded.
Talbot, C. J.: I concur.
[McCarran, J., having become a member of the court after the argument and submission of
the case, did not participate in the opinion.]
____________
38 Nev. 119, 119 (1914) Mirodias v. Southern Pacific Co.
[No. 1946]
JAMES MIRODIAS, STELLA MIRODIAS, and GEORGE MARAGOS, Respondents, v.
SOUTHERN PACIFIC COMPANY, Appellant.
[145 Pac. 912]
1. RailroadsAuthority of Agent.
The authority of an agent cannot be inferred from his conduct, and the fact that a station agent and section
foreman of a railroad assume to generally manage the company's business in the vicinity warrants no
inference of authority to lease or permit the construction of private dwellings on the right of way or to give
away materials belonging to the company.
2. TrialInstructionsApplicability to Evidence.
Where the plaintiffs contended that the defendant railroad company had converted a building which they
constructed on its right of way with the permission of the company's station agent and section foreman, an
instruction that in such case the company was estopped to claim the building if the agents had a reasonably
general control of its affairs at that point was not warranted, where there was no testimony that such agents
exercised a reasonably general control.
3. RailroadsInstructionsMisleading Instructions.
As there was no evidence of the authority of such agents, the instruction, which did not define what was
meant by reasonably general control, was misleading.
4. EvidenceAdmissions by Party.
Where plaintiffs claimed to own a building which they constructed on defendant's right of way, partly out
of materials owned by defendant, evidence that, in a prosecution for the theft of such materials, plaintiff's
counsel had in their presence stated that the building and materials belonged to defendant, and that it had
not been deprived of its ownership, was admissible as an admission.
Appeal from Second Judicial District Court, Washoe County; W. H. A. Pike, Judge
Action by James Mirodias and others against the Southern Pacific Company. From a
judgment for plaintiffs and an order denying a new trial, defendant appeals. Reversed, and
remanded for new trial.
Charles R. Lewers, for Appellant.
James Glynn, for Respondents.
Per Curiam:
This is an action for damages for the conversion of a certain frame dwelling-house in the
town of Mina and for certain articles of personal property within said dwelling-house at
the time of the alleged conversion.
38 Nev. 119, 120 (1914) Mirodias v. Southern Pacific Co.
for certain articles of personal property within said dwelling-house at the time of the alleged
conversion. The prayer of the complaint was for $813 actual damages and $1,000 exemplary
damages. The case was tried to a jury, and a verdict rendered for the plaintiffs for $375
damages. From the judgment and from an order denying a motion for a new trial, defendant
has appealed.
At the time of the alleged conversion or shortly prior thereto, the plaintiffs, respondents
herein, had been employees of defendant, appellant herein, as car repairers, and had been
living in a construction car of defendant provided for such purpose, and which was upon a
side track in the town of Mina. The house in question was constructed by the plaintiffs upon
the right of way of defendant. In the construction of the house it is conceded that some of the
lumber used was obtained from the defendant, but the evidence is conflicting as to the
amount of defendant's lumber so used.
[1] It was the contention of defendant at the trial that that the plaintiffs were trespassers,
and hence could acquire no rights of property by means of such trespass, and further that a
considerable portion of the material used in the construction of the house was the property of
defendant, taken without the consent of defendant and commingled with the other material
purchased by plaintiffs. It was the contention of plaintiffs that they had authority from the car
foreman and the station agent to construct the building on the land of the defendant and use of
defendant's material in its construction. The evidence as to the claim of authorization to do
the acts in question given to plaintiffs by the station agent and car foreman was sharply
conflicting. The testimony of the plaintiffs in this respect, conceding it to have been accepted
by the jury, presented a number of questions of law relative to the authority of the station
agent and car foreman as agents of the defendant corporation to bind the latter. The station
agent and car foreman, not only testified that they did not give consent to construct the
building or use the material, but testified that they had no authority so to do.
38 Nev. 119, 121 (1914) Mirodias v. Southern Pacific Co.
building or use the material, but testified that they had no authority so to do. The proof of
agency upon the part of the plaintiffs rested largely, if not entirely, upon the mere fact that
Stanton was station agent at Mina, and Medill was car foreman in charge of plaintiffs in their
work. But, as said by Huffcut on Agency:
It is the conduct of the principal, and not of the agent, from which authority must be
inferred. (Section 137.)
Stanton and Medill may have acted in such a way as to lead plaintiffs to suppose that they
had authority to do nearly anything at Mina. As indicated by Mr. Huffcut, this is not enough.
There must be some sort of a showing that the defendant held them out as having power to do
the particular things which they are alleged to have done. It cannot be assumed, in the absence
of proof, that a railroadman in charge of a freight and passenger business has authority to
lease land belonging to the company or to give away its property; nor can it be assumed, in
the absence of proof, that a mere car foreman in charge of repair work has authority to permit
houses to be built on company land and to permit material belonging to the company to be
used in the construction of these houses.
[2-3] Among the instructions given to the jury, at the request of the plaintiffs and excepted
to by defendant, was the following:
You are instructed that, if you believe from the evidence that the witness Stanton * * *
was an agent of the defendant, the Southern Pacific Company at Mina, Nevada, having a
reasonably general control of defendant's affairs at Mina, and that during said time he had
knowledge that the plaintiffs were building the house in question, and that the house was
upon ground claimed by the defendant, then it was his duty to notify the plaintiffs that they
were building on the company's ground, and, having such knowledge, and failing to so notify
the plaintiffs, the defendant is estopped from claiming ownership of said house by reason of
its being built on such ground.
38 Nev. 119, 122 (1914) Mirodias v. Southern Pacific Co.
There is no substantial evidence in the record that will support this instruction. There is
testimony that Stanton was the agent of the defendant at Mina, and also showing exactly what
powers he had. There is no testimony that he had a reasonably general control of the
defendant's affairs at Mina. There is nothing in the instruction to define what the court meant
by a reasonably general control. The instruction was therefore misleading, because it
permitted the jury to find against the defendant if he (Stanton) had whatever might accord
with their individual ideas as to a reasonably general control. It was part of the plaintiff's
case to prove the extent of the authority possessed by Stanton. They failed to introduce any
testimony showing his authority, and it was manifestly improper for the court to give an
instruction permitting such a wide range of speculation on the part of the jury as was
necessarily incident to the vague description of authority given by the court. See Schlitz
Brewing Co. v. Grimmon, 28 Nev. 235, 81 Pac. 43; Travers v. Barrett, 30 Nev. 402, 97 Pac.
128.
We think also the court erred in refusing to give defendant's requested instructions Nos. 12
and 17, relative to the law of commingling of property. The law was correctly stated in those
requested instructions, and we think there was evidence in the case which rendered them
appropriate.
[4] It appears from the record that at about the time the defendant took possession of the
house in question the plaintiffs were prosecuted for the larceny of certain of the lumber in the
house, and that, in their presence, during the trial of this larceny case, their attorney made
certain statements concerning the rights of the defendant to the possession of the building and
premises. The defendant offered testimony showing what these statements were, which
testimony was excluded on objection of the plaintiffs. From the record it appears that the
defendant offered to prove that it had been admitted by the attorney for the plaintiffs, and in
their presence, that part of the building was constructed of lumber belonging to the
defendant, and that the defendant had a right to the possession of the building, and that,
as it was on defendant's land, the defendant owned the building.
38 Nev. 119, 123 (1914) Mirodias v. Southern Pacific Co.
that part of the building was constructed of lumber belonging to the defendant, and that the
defendant had a right to the possession of the building, and that, as it was on defendant's land,
the defendant owned the building. The court excluded this offer, and an exception was duly
taken.
This testimony was offered to show that the plaintiffs had made a different claim with
reference to the house at a prior time through their attorney. As this statement was made in
their presence, and not objected to by them, it was error on the part of the court to exclude the
offered testimony. At the trial of this case plaintiffs claimed that they had actual and lawful
authority to construct the house on the defendant's land and to take the defendant's lumber. At
the former trial they contended that the lumber had never been taken out of the possession of
the defendant, as it was still on the defendant's land, and that they merely thought they had
authority to take it.
The record contains numerous other assignments of error, but we think the views already
expressed make it unnecessary to determine them.
The judgment and order are reversed, and the cause remanded for a new trial.
____________
38 Nev. 123, 123 (1914) First Nat'l Bank of San Francisco v. Nye County
[No. 2042]
THE FIRST NATIONAL BANK OF SAN FRANCISCO (A Corporation), Respondent, v.
NYE COUNTY (A Corporation), Appellant.
[145 Pac. 932]
1. StatutesSubject and Title.
The act of March 13, 1903 (Stats. 1903, c. 78), secs. 6, 7 (Rev. Laws, secs. 3831, 3832), authorizing
county commissioners, in case of great necessity or emergency, to make a temporary loan, and requiring
them at the next tax levy to make a levy for its payment, does not, in violation of Const. art. 14, sec. 17,
relate to a subject not embraced in the title, An act relating to county government and the reduction of the
rate of county taxation.
2. CountiesCommissionersPowersNegotiable Notes.
County commissioners cannot issue negotiable notes unless power is given expressly or by clear
implication.
38 Nev. 123, 124 (1914) First Nat'l Bank of San Francisco v. Nye County
3. CountiesCommissionersPowersNegotiable Notes.
Under the act of March 13, 1903 (Stats. 1903, c. 78), secs. 6, 7 (Rev. Laws, secs. 3831, 3832),
authorizing county commissioners, in case of great necessity or emergency, to make a temporary loan, and
requiring them at the next tax levy to levy an extra tax to pay it, no power to execute a negotiable note to
secure the payment can be implied.
4. CountiesCommissionersPowersNegotiable NotesStrictly Necessary.
Giving negotiable notes for temporary loans made by county commissioners in case of great necessity or
emergency, to be paid for from the next tax levy, under authority of the act of March 13, 1903 (Stats. 1903,
c. 78), secs. 6, 7 (Rev. Laws, secs. 3831, 3832), is not within the act of March 8, 1865 ( Stats. 1864-65, c.
80), sec. 8, subd. 13, empowering county commissioners to do things strictly necessary to the full
discharge of their powers.
5. CountiesLoans by CommissionersEstoppel.
A county having had the benefit of money obtained by county commissioners on a temporary loan under
the act of March 13, 1903 (Stats. 1903, c. 78), sec. 6, is estopped to assert that there did not exist a case of
great necessity or emergency authorizing the commissioners making the loan.
6. CountiesClaimsPresentations for AllowanceNotes of Commissioners.
The orders of county commissioners authorizing issuance of notes, and their subsequent issuance thereof,
constitute them approved liquidated demands against the county, which therefore need not be presented to
the board for allowance before action thereon, and this though they be not negotiable.
7. CountiesNotes of County CommissionersNegotiability.
County commissioners having no power to issue negotiable notes, notes issued by them will be regarded
as non-negotiable.
8. Bills and NotesNon-NegotiableAction by AssigneeDefenses and Set-Off.
By express provision of the civil practice act, sec. 46, action of a non-negotiable note by its assignee is
subject to any set-off or defense existing at the time of or before notice of the assignment.
9. Banks and BankingInsolvencySet-Off of Deposit Against Note.
No demand is necessary for a deposit in an insolvent bank in order to set it off against a note of the
depositor in the hands of the receiver.
10. Bills and NotesAction by AssigneeNecessary Parties.
In an action against a county on its note, given a bank, by the assignee thereof, neither the receiver of the
bank nor its preferred creditors are necessary parties; any questions of preference being for the receivership
matter.
38 Nev. 123, 125 (1914) First Nat'l Bank of San Francisco v. Nye County
Appeal from the Fifth Judicial District Court, Nye County; John S. Orr, judge, presiding.
Action by the First National Bank of San Francisco against Nye County. Judgment for
plaintiff, and defendant appeals. Reversed, with directions.
Statement of Facts
This action is one to recover on four distinct causes of action, three of which are based
upon three promissory notes executed by the county commissioners of Nye County to the Nye
and Ormsby County Bank, dated respectively October 2, 1907, October 15, 1907, and April 8,
1908. The fourth cause of action is for the amount of the aggregate of the three notes upon the
theory of money had and received.
The demurrer of the defendant to the amended complaint having been overruled, the
defendant answered, and to the answer of defendant the plaintiff demurred, and made a
motion to strike, the demurrer and motion to strike reaching every allegation and defense in
the answer. The demurrer was sustained, and the motion to strike granted. The defendant
declined to amend its answer, and a judgment was given for the plaintiff, from which
judgment appeal is taken to this court.
The facts, therefor, must be taken from the allegations of the answer. It therefore appears
that on September 5, 1907, the board of county commissioners of the defendant, Nye County,
adopted a resolution purporting to authorize the negotiation of an emergency loan, which
resolution was thereafter approved by the state board of revenue on the 23d day of September,
1907, and the resolution of the state board of revenue was, on the 25th day of September,
1907, recorded in the minutes of the board of county commissioners of Nye County.
Assuming to act under and by virtue of the authority of said resolution, the county
commissioners of Nye County executed, on the 2d day of October, 1907, on the 15th day of
October, 1907, and on the 8th day of April, 1908, three promissory notes in respectively the
sums of $2,514.95, $10,000, and $10,000, each of these notes bearing interest at the rate
of 12 per cent per annum from the date thereof until paid, and being payable, under the
terms thereof, on December 31, 190S, and also providing for attorney's fees in the event
of suit.
38 Nev. 123, 126 (1914) First Nat'l Bank of San Francisco v. Nye County
three promissory notes in respectively the sums of $2,514.95, $10,000, and $10,000, each of
these notes bearing interest at the rate of 12 per cent per annum from the date thereof until
paid, and being payable, under the terms thereof, on December 31, 1908, and also providing
for attorney's fees in the event of suit. The notes all being in the same form, except as to date
and amount, a copy of one only will be set out. It reads:
Whereas, on the 5th day of September, A. D. 1907, the board of county commissioners of
Nye County passed and entered upon their minutes a resolution indorsed by the respective
members of that board to the effect that a loan be negotiated in the sum of forty thousand
dollars in order to conduct the affairs of Nye County; and
Whereas, the said resolution was forwarded to the honorable state board of revenue; and
Whereas, that body, consisting of the Honorable John Sparks, as Governor, J. F. Eggers,
as Comptroller, and the Honorable R. C. Stoddard, as Attorney-General, duly authorized the
said board of county commissioners of Nye County in accordance with law to negotiate said
emergency loan:
Now, therefore, the said board of county commissioners, consisting W. T. Cuddy, as
chairman, and S. F. Lindsay and J. J. McQuillan, in order to carry out the provisions of said
resolution as passed on September 5th, do hereby enter into this promissory note binding the
credit of Nye County for the payment thereof:
Tonopah, Nevada, October 2, 1907.
On or before December 31, 1908, without grace, the county of Nye, in the State of Nevada,
promises to pay to the Nye & Ormsby County Bank, or order at its banking office in
Tonopah, Nye County, Nevada, the sum of two thousand five hundred and fourteen
($2,514.95) dollars and ninety-five cents, in gold coin of the United States, with interest at the
rate of twelve (12%) per cent per annum from date until paid, for value received, and in case
of suit or action being instituted to collect this note, or any portion thereof, the said county
promises to pay such additional sum as the court may adjudge reasonable as attorney's
fees in the said suit or action.
38 Nev. 123, 127 (1914) First Nat'l Bank of San Francisco v. Nye County
such additional sum as the court may adjudge reasonable as attorney's fees in the said suit or
action.
[Signed] W. T. Cuddy,
Jas. J. McQuillan,
S. F. Lindsay,
County Commissioners of Nye County, Acting in and for said County, Binding the Said
County for the Payment of the Above Note.
Some time prior to December 31, 1908, the Nye and Ormsby County Bank assigned these
notes to the First National Bank of San Francisco, the plaintiff in the action. The notes were
never presented to the board of county commissioners for allowance and approval either
within six months, or at any time thereafter.
It also affirmatively appears from the pleadings of the case that the note of April 8, 1908,
was executed pursuant to said resolution of the 5th day of September, 1907, and after the first
Monday in March, 1908, the time for the first tax levy following the passage of the
emergency resolution.
It further appears from the answer that for a long time prior to the 23d day of February,
1909, the Nye and Ormsby County Bank was a designated depositary of Nye County, and that
the county treasurer had, at divers and sundry times during the period intervening, placed on
special deposit for safekeeping, and as a trust, with the Nye and Ormsby County Bank at its
branch office at Tonopah, upon open account for the use and benefit of the defendant, a
balance aggregating the sum of $66,686.36; that the Nye and Ormsby County Bank became
insolvent, and finally closed its doors upon the 23d day of February, 1909, at which time it
had upon deposit of the moneys of Nye County aforesaid said sum of $66,686.36; that no part
of that amount has ever been paid to the county by the Nye and Ormsby County Bank; that
the defendant never had any notice or knowledge of the assignment of the so-called
promissory notes or indebtedness from the Nye and Ormsby County Bank to the plaintiff; and
that the plaintiff failed and neglected to apprise the defendant, Nye County, of the transfer
of said notes, or the amount due thereon, until long subsequent to the maturity thereof,
and a long time subsequent to the 23d day of February, 1909, after the Nye and Ormsby
County Bank had closed its doors and ceased business.
38 Nev. 123, 128 (1914) First Nat'l Bank of San Francisco v. Nye County
to apprise the defendant, Nye County, of the transfer of said notes, or the amount due thereon,
until long subsequent to the maturity thereof, and a long time subsequent to the 23d day of
February, 1909, after the Nye and Ormsby County Bank had closed its doors and ceased
business.
It is further alleged in the answer that at the time of the transfer and indorsement of the
promissory notes set forth and of the transfer of all the causes of action set forth in plaintiff's
complaint, by the Nye and Ormsby County Bank, the said Nye and Ormsby County Bank was
insolvent and unable to pay the plaintiff, or any of its depositors or other creditors, and that
the plaintiff in this action well knew the same.
It is further alleged that on the 31st day of December, 1908, this defendant had on deposit
with the Nye and Ormsby County Bank ample funds with which to liquidate and pay the
notes, together with the interest thereon, having on deposit $77,753.79, which sum included
the $22,703.09, the emergency tax fund, which had been levied and collected against the
taxable property of Nye County for the express purpose of paying the indebtedness set forth
in the plaintiff's complaint, all of which the plaintiff well knew and was fully advised; that the
amount of said emergency tax fund on deposit with the Nye and Ormsby County Bank on the
31st day of December, 1908, and thereafter and up to the 23d day of February, 1909, the date
of the closing of said Nye and Ormsby County Bank, was ample and sufficient to settle the
emergency indebtedness and pay the so-called notes and obligations held by the plaintiff; that
the demands of plaintiff are counterclaimed by the deposit aforesaid, and thereby amply paid
and compensated.
It further appears that the defendant had no notice at any time prior to March, 1909, of the
transfer of the so-called promissory notes from the Nye and Ormsby County Bank to the
plaintiff in this action, and that, on the contrary, they were given to understand and were
informed by the officers of the Nye and Ormsby County Bank that no transfer of any kind had
ever been made of the said notes, and that this defendant relied upon such information;
that at the time of the transfer of said notes from the Nye and Ormsby County Bank to the
plaintiff the Nye and Ormsby County Bank was insolvent, and that plaintiff had knowledge
and notice of its insolvency, and that these notes, and other notes and collateral in the
hands of the Nye and Ormsby County Bank, were transferred to the plaintiff as collateral
security for preexisting indebtedness due plaintiff from the Nye and Ormsby County Bank,
and that the plaintiff in this case knew, and had knowledge, that the Nye and Ormsby
County Bank was a depositary of the public funds of defendant, Nye County, and in
constant receipt of money from the defendant.
38 Nev. 123, 129 (1914) First Nat'l Bank of San Francisco v. Nye County
the said notes, and that this defendant relied upon such information; that at the time of the
transfer of said notes from the Nye and Ormsby County Bank to the plaintiff the Nye and
Ormsby County Bank was insolvent, and that plaintiff had knowledge and notice of its
insolvency, and that these notes, and other notes and collateral in the hands of the Nye and
Ormsby County Bank, were transferred to the plaintiff as collateral security for preexisting
indebtedness due plaintiff from the Nye and Ormsby County Bank, and that the plaintiff in
this case knew, and had knowledge, that the Nye and Ormsby County Bank was a depositary
of the public funds of defendant, Nye County, and in constant receipt of money from the
defendant.
It is further alleged in the answer that the plaintiff, in connection with the Nye and Ormsby
County Bank, and with its officers, and well knowing the insolvency of said bank, conspired
and contrived to obtain an undue advantage and preference over other creditors and
depositors of the bank, and particularly to the wrong and injury of the defendant, and did
obtain an unlawful preference in the payments of its obligation from the Nye and Ormsby
County Bank to the wrong and injury of this defendant.
It is further alleged in the answer, as a defense, that the First National Bank of San
Francisco obtained an unlawful preference over this defendant in having transferred to it, not
only the notes of Nye County, but other collateral securities and negotiable commercial paper,
all of which were transferred, according to the allegations of the answer, as security for
preexisting indebtedness due and payable from the Nye and Ormsby County Bank to the
plaintiff; that the preexisting indebtedness due from the Nye and Ormsby County Bank to the
plaintiff consisted of two negotiable promissory notes dated March 6, 1908, made and
executed by the Nye and Ormsby County Bank to the plaintiff in the sum of $50,000, with
interest at 6 per cent per annum, and a further promissory note bearing date of December 28,
1907, made and executed by the Nye and Ormsby County Bank to the plaintiff for the
principal sum of $100,000, with interest at the rate of 7 per cent per annum from date
until paid; that each of said loans were made long prior to the transfer of the notes
mentioned in the complaint and the other negotiable and commercial paper thereafter
transferred to the plaintiff; that each of said notes, upon the respective dates of issuance
and execution and delivery, were respectively indorsed by Frank Golden, and at said times
said Frank Golden, as said indorser, did by said indorsement waive presentation thereof to
the maker, demand, protest, and notice of nonpayment, and did guarantee the payment
of the same; that at the time of making said indorsements and personal guarantee of each
of said promissory notes Frank Golden was, and at all times thereafter, until the closing of
said institution on the 23d day of February, 1909, the president and a director of the Nye
and Ormsby County Bank; that said preference was unlawful, illegal, and void.
38 Nev. 123, 130 (1914) First Nat'l Bank of San Francisco v. Nye County
plaintiff for the principal sum of $100,000, with interest at the rate of 7 per cent per annum
from date until paid; that each of said loans were made long prior to the transfer of the notes
mentioned in the complaint and the other negotiable and commercial paper thereafter
transferred to the plaintiff; that each of said notes, upon the respective dates of issuance and
execution and delivery, were respectively indorsed by Frank Golden, and at said times said
Frank Golden, as said indorser, did by said indorsement waive presentation thereof to the
maker, demand, protest, and notice of nonpayment, and did guarantee the payment of the
same; that at the time of making said indorsements and personal guarantee of each of said
promissory notes Frank Golden was, and at all times thereafter, until the closing of said
institution on the 23d day of February, 1909, the president and a director of the Nye and
Ormsby County Bank; that said preference was unlawful, illegal, and void.
As a further defense the answer alleges that between the 1st day of January, 1907, and the
23d day of March, 1909, R. F. Gilbert was the duly elected treasurer of Nye County, and that
at all times and dates between the 1st of August, 1907, and February 23, 1909, the Nye and
Ormsby County Bank was the duly designated and appointed depositary of the funds of Nye
County, especially those coming into the custody and control of the treasurer; that the First
National Bank of San Francisco, the plaintiff herein, was at all times between January 1,
1908, and February 23, 1909, fully informed and acquainted with the relation that existed
between the Nye and Ormsby County Bank and the defendant, Nye County, and knew that the
Nye and Ormsby County Bank was a depositary of funds and moneys of said Nye County,
particularly the funds of the county coming into the hands of the treasurer, Mr Gilbert; that at
the times and dates mentioned in the plaintiff's complaint, and under and pursuant to the
authority of section 6 of an act of the legislature entitled An act relating to county
government and the reduction of the rate of county taxation," approved March 13, 1903,
Nye County negotiated an emergency loan from the Nye and Ormsby County Bank at
Tonopah, in the sum of $22,514.95, and issued as evidence thereof the alleged
promissory notes specifically set out in plaintiff's complaint; that at the first tax levy
thereafter, and for the purpose of paying off said loan, and in compliance with section 7 of
said act, the defendant, Nye County, levied and collected an emergency tax upon the
property in Nye County sufficient to pay said emergency loan; that said loan was due and
payable according to the terms thereof, upon December 31, 190S, at the banking office of
the Nye and Ormsby County Bank at Tonopah, Nevada; that on the day of maturity the
defendant, Nye County, had on deposit with the Nye and Ormsby County Bank, at its
Tonopah office and branch, $79,753.79, which sum included the emergency tax which
had been levied for the purpose of paying said emergency loan; that on January 5, 1909,
Nye County, by and through its county auditor, after a demand for payment by the Nye
and Ormsby County Bank had been made, presented, offered, and tendered to the Nye
and Ormsby County Bank at Tonopah, a check on said Nye and Ormsby County Bank, and
upon the deposit of Nye County therein, and drawn against said emergency fund in the
sum of $22,703.09, in payment of said loan, principal, and interest; that the Nye and
Ormsby County Bank informed the auditor of this defendant that the alleged notes were
in the branch office at Carson City, and that they would send and get them; that said
notes were never presented, nor was any claim or demand ever made for the same until
long thereafter, and after the failure and closing of the Nye and Ormsby County Bank,
when, upon demand for payment being made by the plaintiff, defendant, Nye County,
learned that plaintiff was the holder thereof; that the Nye and Ormsby County Bank, being
insolvent, closed its doors on February 23, 1909, and was insolvent on the 31st day of
December, 190S; that on February 23, 1909, the date of the
38 Nev. 123, 131 (1914) First Nat'l Bank of San Francisco v. Nye County
act relating to county government and the reduction of the rate of county taxation, approved
March 13, 1903, Nye County negotiated an emergency loan from the Nye and Ormsby
County Bank at Tonopah, in the sum of $22,514.95, and issued as evidence thereof the
alleged promissory notes specifically set out in plaintiff's complaint; that at the first tax levy
thereafter, and for the purpose of paying off said loan, and in compliance with section 7 of
said act, the defendant, Nye County, levied and collected an emergency tax upon the property
in Nye County sufficient to pay said emergency loan; that said loan was due and payable
according to the terms thereof, upon December 31, 1908, at the banking office of the Nye and
Ormsby County Bank at Tonopah, Nevada; that on the day of maturity the defendant, Nye
County, had on deposit with the Nye and Ormsby County Bank, at its Tonopah office and
branch, $79,753.79, which sum included the emergency tax which had been levied for the
purpose of paying said emergency loan; that on January 5, 1909, Nye County, by and through
its county auditor, after a demand for payment by the Nye and Ormsby County Bank had been
made, presented, offered, and tendered to the Nye and Ormsby County Bank at Tonopah, a
check on said Nye and Ormsby County Bank, and upon the deposit of Nye County therein,
and drawn against said emergency fund in the sum of $22,703.09, in payment of said loan,
principal, and interest; that the Nye and Ormsby County Bank informed the auditor of this
defendant that the alleged notes were in the branch office at Carson City, and that they would
send and get them; that said notes were never presented, nor was any claim or demand ever
made for the same until long thereafter, and after the failure and closing of the Nye and
Ormsby County Bank, when, upon demand for payment being made by the plaintiff,
defendant, Nye County, learned that plaintiff was the holder thereof; that the Nye and Ormsby
County Bank, being insolvent, closed its doors on February 23, 1909, and was insolvent on
the 31st day of December, 1908; that on February 23, 1909, the date of the closing of said
Nye and Ormsby County Bank, this defendant had on deposit the sum of $66,6S9.36,
which included the emergency fund amounting to $23,917.91 which had been levied and
collected for the purpose of paying said loan; that at all times between December 31,
190S, and February 23, 1909, defendant, Nye County, had on deposit with the Nye and
Ormsby County Bank more than $60,000, and had on deposit with the Nye and Ormsby
County Bank the emergency fund, and was ready and anxious and willing to pay up said
loan; that Nye County relied upon and believed the representations of the Nye and
Ormsby County Bank and its officers that they were the owners and holders of the notes,
and were lulled into a sense of security by the nonpresentation of said notes, and by the
neglect and negligence of the plaintiff to present the same for payment, and, having no
knowledge of the transfer thereof to plaintiff, or of the insolvency of the Nye and Ormsby
County Bank, made no attempt to withdraw its deposits from the Nye and Ormsby County
Bank, but, on the contrary, relying upon its absolute solvency continued to make said Nye
and Ormsby County Bank a depositary of county funds, and between December 31, 190S,
and February 23, 1909, deposited funds of Nye County to the extent of $32,759.15; that
the plaintiff, during all of these times, was a large creditor of the Nye and Ormsby County
Bank, and, having full knowledge of the relations existing between the Nye and Ormsby
County Bank and the defendant, contrived and conspired, purposely and willfully, with the
Nye and Ormsby County Bank and its officers, and for the purpose of deceiving and
defrauding and damaging the defendant, to withhold the presentation of said notes and
notification to defendant that it was the owner and holder thereof, in the hope and
expectation that, by reason and virtue of the large deposits continuously being made by
the defendant, Nye County, in the defunct Nye and Ormsby County Bank, the said Nye and
Ormsby County Bank could continue and remain open for a considerable period of time,
and
38 Nev. 123, 132 (1914) First Nat'l Bank of San Francisco v. Nye County
1909, the date of the closing of said Nye and Ormsby County Bank, this defendant had on
deposit the sum of $66,689.36, which included the emergency fund amounting to $23,917.91
which had been levied and collected for the purpose of paying said loan; that at all times
between December 31, 1908, and February 23, 1909, defendant, Nye County, had on deposit
with the Nye and Ormsby County Bank more than $60,000, and had on deposit with the Nye
and Ormsby County Bank the emergency fund, and was ready and anxious and willing to pay
up said loan; that Nye County relied upon and believed the representations of the Nye and
Ormsby County Bank and its officers that they were the owners and holders of the notes, and
were lulled into a sense of security by the nonpresentation of said notes, and by the neglect
and negligence of the plaintiff to present the same for payment, and, having no knowledge of
the transfer thereof to plaintiff, or of the insolvency of the Nye and Ormsby County Bank,
made no attempt to withdraw its deposits from the Nye and Ormsby County Bank, but, on the
contrary, relying upon its absolute solvency continued to make said Nye and Ormsby County
Bank a depositary of county funds, and between December 31, 1908, and February 23, 1909,
deposited funds of Nye County to the extent of $32,759.15; that the plaintiff, during all of
these times, was a large creditor of the Nye and Ormsby County Bank, and, having full
knowledge of the relations existing between the Nye and Ormsby County Bank and the
defendant, contrived and conspired, purposely and willfully, with the Nye and Ormsby
County Bank and its officers, and for the purpose of deceiving and defrauding and damaging
the defendant, to withhold the presentation of said notes and notification to defendant that it
was the owner and holder thereof, in the hope and expectation that, by reason and virtue of
the large deposits continuously being made by the defendant, Nye County, in the defunct Nye
and Ormsby County Bank, the said Nye and Ormsby County Bank could continue and remain
open for a considerable period of time, and could make payments, in part at least, upon its
obligations to the First National Bank of San Francisco; that pursuant to the failure,
neglect, and negligence of the plaintiff to present said notes for payment at maturity, and
by reason of the wrongful acts of plaintiff in withholding the presentation thereof, and
withholding notice that it was the owner and holder of the alleged notes, the emergency
fund collected for the purpose of paying said emergency loan, together with the balance
of defendant's deposit in the Nye and Ormsby County Bank, was forever lost to this
defendant, by reason of which this defendant was damaged in the sum of $66,6S9.36.
38 Nev. 123, 133 (1914) First Nat'l Bank of San Francisco v. Nye County
considerable period of time, and could make payments, in part at least, upon its obligations to
the First National Bank of San Francisco; that pursuant to the failure, neglect, and negligence
of the plaintiff to present said notes for payment at maturity, and by reason of the wrongful
acts of plaintiff in withholding the presentation thereof, and withholding notice that it was the
owner and holder of the alleged notes, the emergency fund collected for the purpose of paying
said emergency loan, together with the balance of defendant's deposit in the Nye and Ormsby
County Bank, was forever lost to this defendant, by reason of which this defendant was
damaged in the sum of $66,689.36.
The answer also alleges that the various county governments and counties are preferred
creditors against all banking institutions; the Esmeralda and Ormsby Counties also lost
money in the Nye and Ormsby County Bank; and that they should therefore be made parties
to the action.
Geo. B. Thatcher and P. M. Bowler, for Appellant.
H. R. Cooke, for Respondent.
By the Court, Norcross J., after stating the facts:
[1] The notes sued upon in this case were issued under and by virtue of the provisions of
sections 6 and 7 of an act entitled An act relating to county government and the reduction of
the rate of county taxation, approved March 13, 1903 (Rev. Laws, secs. 3831, 3832), which
read:
Sec. 6. In case of great necessity or emergency, the board of commissioners by
unanimous vote, by resolution reciting the character of such necessity or emergency, may
authorize a temporary loan for the purpose of meeting such necessity or emergency, but such
resolution shall not take effect until it has been approved by resolution adopted by a majority
of the state board of revenue, and the resolution of the state board of revenue shall also be
recorded in the minutes of the county commissioners.
38 Nev. 123, 134 (1914) First Nat'l Bank of San Francisco v. Nye County
Sec. 7. It shall be the duty of the commissioners at the first tax levy following the creation
of such emergency indebtedness to levy an extra tax sufficient to pay the same, which shall be
designated emergency tax.'
It is contended that boards of county commissioners are not empowered to issue negotiable
promissory notes under the provisions of section 6, and, further, that sections 6 and 7 are
unconstitutional and void, because relating to a subject not embraced in the title of the act, in
violation of section 17, art. 4, of the constitution.
The sections in question, we think, are not within the constitutional inhibition. The act
provides for a gradual reduction of the tax rate in the several counties of the state until a
certain prescribed rate is reached, which should thereafter be the maximum rate. Boards of
commissioners are required annually, prior to the first Monday in March, to make a budget of
the amount estimated to be required to meet the expenses of conducting the public business
of the county for the next ensuing year. Such boards are prohibited from allowing or
contracting for any expenditure unless the money for the payment thereof is in the treasury
and especially set aside for such payment. A violation of this provision subjects the
commissioners to removal from office. Recognizing that unforeseen necessities or
emergencies might arise requiring the expenditure of additional money not provided for in the
general tax levy, sections 6 and 7 were inserted in the act to make provision for meeting such
necessities or emergencies. These provisions are therefore in harmony with the general
purposes of the act.
[2-3] We think the language of sections 6 and 7, supra, will not justify a construction
implying a power in the board of county commissioners to execute a negotiable promissory
note as security for money borrowed under the provisions of said section 6. It will be noted
that there is no express authority for the execution of any negotiable instrument as security for
the money borrowed. It has been repeatedly decided by this court that boards of county
commissioners are of special and limited jurisdiction, and that authority to do any act must
have specific statutory provision therefor, or must be clearly implied from other language
contained in the statute.
38 Nev. 123, 135 (1914) First Nat'l Bank of San Francisco v. Nye County
statutory provision therefor, or must be clearly implied from other language contained in the
statute. The loan authorized under the provisions of the section in question is specified to be
temporary in character. A tax is required to be levied at the next annual tax levy to meet the
same; hence the duration of the indebtedness is only contemplated to be a year or less. The
special emergency tax required to be levied under the provisions of section 7 provides a
certain and sure method of extinguishing the debt at the earliest possible date. The shortness
of the duration of the loan and the special tax to secure its liquidation negative an intent upon
the part of the legislature to authorize the issuance of a negotiable instrument. The security
provided for the repayment of the sum borrowed is ample and absolute, and it cannot be
assumed that a negotiable instrument is manifestly necessary to secure the payment of such a
debt. It is a well-established general rule, supported by numerous authorities, that boards of
county commissioners are without power to issue negotiable bonds or notes, except by virtue
of express provision of statute or where the language of the statute is such that the right to
issue negotiable instruments is clearly implied. For example, it has been held that, where a
board of county commissioners has been empowered to issue bonds payable a long time in
the future, without express provision that such bonds should be negotiable in form, the right
to issue the same in form negotiable was implied. (Ashley v. Board, 60 Fed. 55, 67, 8 C. C. A.
455.)
Judge Thayer, speaking for the Circuit Court of Appeals, Eighth Circuit, in Ashuelot
National Bank v. School District, 56 Fed. 197, 199, 5 C. C. A. 468, 470, said:
It is unnecessary for us to assert that the decision last referred to (Brenham v. Bank, 144
U. S. 173, 12 Sup. Ct. 559, 36 L. Ed. 390) goes to the full extent last indicated of holding that
a municipal corporation can only acquire authority to issue negotiable securities by a statute
which confers such power in express language, and that the power will not be implied under
any circumstances. We think, however, that we may fairly affirm that the two authorities
heretofore cited do establish the following propositions: First, that an express power
conferred upon a municipal corporation to borrow money for corporate purposes does not
in itself carry with it an authority to issue negotiable securities; second, that the latter
power will never be implied in favor of a municipal corporation, unless such implication is
necessary to prevent some express corporate power from becoming utterly nugatory;
and, third, that in every case where a doubt arises as to the right of a municipal
corporation to execute negotiable securities the doubt should be resolved against the
existence of any such right."
38 Nev. 123, 136 (1914) First Nat'l Bank of San Francisco v. Nye County
authorities heretofore cited do establish the following propositions: First, that an express
power conferred upon a municipal corporation to borrow money for corporate purposes does
not in itself carry with it an authority to issue negotiable securities; second, that the latter
power will never be implied in favor of a municipal corporation, unless such implication is
necessary to prevent some express corporate power from becoming utterly nugatory; and,
third, that in every case where a doubt arises as to the right of a municipal corporation to
execute negotiable securities the doubt should be resolved against the existence of any such
right.
In Coffin v. Board of Commissioners, 57 Fed. 137, 140, 6 C. C. A. 288, 292, Judge
Thayer, speaking for the same court, also said:
Finally it is proper to call attention to the rule of law which requires the authority of a
municipal corporation to issue negotiable paper to be clearly made out and established
whenever the existence of such a power is called in question. A power of that nature will not
be deduced from uncertain inferences, and can only be conferred by language which leaves no
reasonable doubt of an intention to confer it.
Also, 11 Cyc. 551, says:
Express authority is not in all cases required for the issuance of negotiable paper, but may
be implied from other express powers granted. There is, however, no room for any
implication of such power where a statute makes other specific provision for the payment of
indebtedness, as by taxation, etc., or by warrant on the treasurer for money payable out of a
designated fund or any money in the treasury not otherwise appropriated.
See, also, County of Hardin v. McFarlan, 82 Ill. 138; Claiborne Co. v. Brooks, 111 U. S.
400, 411, 4 Sup. Ct. 489, 28 L. Ed. 470; Brenham v. Bank, 144 U. S. 173, 12 Sup. Ct. 559, 36
L. Ed. 390; Gause v. City of Clarksville, 5 Dill. 165, Fed. Cas. No. 5,276; notes, 30 Am. Dec.
193, and 51 Am. St. Rep. 830.
38 Nev. 123, 137 (1914) First Nat'l Bank of San Francisco v. Nye County
It is urged by counsel for respondent that this court, in the case of Douglass v. Virginia
City, 5 Nev. 149, sustained the view that a municipal corporation, unless in some way
restricted by its charter, could enter into any contract necessary to enable it to carry out the
powers conferred upon itexecute and deliver negotiable promissory notes in discharge of
its legitimate powersand that such decision is an authoritative declaration of this court
directly in point in this case. The suit involved in the Virginia City case was upon a
promissory note negotiable in form, but the question of the power of the municipal authorities
to issue a negotiable instrument does not appear to have been raised in that case or
specifically considered by the court. All the objections urged against a recovery in that case
would have applied with equal force if the notes sued upon had been non-negotiable. The
only authority cited in the decision was that of Ketchum v. City of Buffalo, 14 N. Y. 356. This
latter decision sustained the power of a municipal corporation to issue a negotiable instrument
in order to carry out certain express powers conferred by the city charter. But this court, in
considering the Virginia City case, made no reference to this part of the decision in the
Buffalo case.
When the case of Douglass v. Virginia City was before this court, there were
comparatively few authorities available upon the question of the power of counties and
municipal corporations, in the absence of express authority, to issue negotiable instruments.
The question had not then received the consideration which courts and text-writers have
subsequently devoted to it. It would also appear from the authorities that a more strict rule
prevails in reference to the exercise of such a power by county authorities than in the case of
strictly municipal corporations.
In the case of Gause v. City of Clarksville, 5 Dill. 165, Fed. Cas. No. 5,276 (decided in
1879, ten years later than the Douglass v. Virginia City case), Judge Dillon, speaking for the
Circuit Court of the United States, said:
38 Nev. 123, 138 (1914) First Nat'l Bank of San Francisco v. Nye County
speaking for the Circuit Court of the United States, said:
We are aware that the American courts, as to private corporations organized for pecuniary
profit, have very generally held a different doctrine, and affirmed their implied or incidental
power to make commercial paper. (Dillon on Municipal Corporations, secs. 81, 82, 407, and
cases cited.) But the powers of private corporations in this regard are not here material. The
American judgments which have affirmed the like power in municipal corporations have
done so upon this course of reasoning: The corporation, they argue, has power to contract a
debt, and it is assumed to be incident to that power to give a note or bill or bond in payment
of it. Thus, in Kelley v. Brooklyn, 4 Hill (N. Y.) 263, Cowen, J., makes the basis of the
judgment the erroneous proposition that, independent of any statute provision, all
corporations, private and municipal, may issue negotiable paper for a debt contracted in the
course of its business; and other courts have, without examination, adopted this mistaken
view of the law. (Galena v. Corwith, 48 Ill. 423, 95 Am. Dec. 557; Clarke v. School District,
3 R. I. 199; Sheffield v. Andress, 56 Ind. 157; Tucker v. Raleigh, 75 N. C. 267; Ketchum v.
Buffalo, 14 N. Y. 356; Douglass v. Virginia City, 5 Nev. 147; Sturtevants v. Alton, 3 McLean,
393, Fed. Cas. No. 13,580.) It sufficiently appears from the foregoing that it is a mistake to
affirm that the power to issue negotiable paper necessarily or legally results from the
corporate power to create debts.
The decision in the case of Galena v. Corwith, 48 Ill. 423, 95 Am. Dec. 557, cited supra
by Judge Dillon, was subsequently materially restricted, if not entirely overruled, in Hardin v.
McFarlan, 82 Ill. 138, and in Commissioners v. Newell, 80 Ill. 587.
We would not, we think, be warranted in sustaining the judgment in this case upon the
authority of Douglass v. Virginia City, for the reasons stated.
[4] It is contended by counsel for appellant that subdivision 13 of section 8 of an act
entitled An act to create a board of county commissioners in the several counties of this
state, and to define their duties and powers," approved March S, 1S65 {Stats.
38 Nev. 123, 139 (1914) First Nat'l Bank of San Francisco v. Nye County
create a board of county commissioners in the several counties of this state, and to define
their duties and powers, approved March 8, 1865 (Stats. 1864-65, c. 80), is applicable to
section 6, supra, of the act of 1903. The subdivision reads as follows:
To do and perform all such other acts and things as may be lawful and strictly necessary
to the full discharge of the powers and jurisdiction conferred on the board. (Rev. Laws, sec.
1508.)
We think this subdivision is only applicable to the section of which it constitutes a part,
but, even if it could be said to be applicable to section 6, supra, of the act of 1893, it cannot
be said, we think, that the issuance of negotiable promissory notes is strictly necessary to the
full discharge of the powers prescribed in said section 6.
[5] It is next contended by counsel for appellant that the notes sued upon were issued
without authority of law, for the reason that the recitals contained in the resolution adopted by
the board of county commissioners of Nye County, and purporting to state the facts
constituting a great necessity or emergency, were insufficient to authorize the negotiation of
the loan for the payment of which the notes were issued. It is admitted that the county
received the money represented by the principal of the several notes sued upon, used the same
in the business of the county, and levied and collected a tax for the payment of the same.
While at the time the county was negotiating the loan in question any taxpayer of Nye County
might by appropriate proceedings have tested the question whether the alleged emergency or
necessity, as set forth in the resolution of the board of county commissioners, was strictly an
emergency or necessity contemplated by the law, the county itself will not be heard to
question the sufficiency of its own resolution for the purpose of defeating the payment of the
loan which it has secured and the money from which the county has received the benefit of.
The resolution adopted by the county commissioners also met with the approval of the state
board of revenue, the two bodies empowered by the statute to determine the question,
and the county is estopped from questioning the regularity of its own proceedings when it
has received all the benefit of the money paid to it by virtue of such loan.
38 Nev. 123, 140 (1914) First Nat'l Bank of San Francisco v. Nye County
of revenue, the two bodies empowered by the statute to determine the question, and the
county is estopped from questioning the regularity of its own proceedings when it has
received all the benefit of the money paid to it by virtue of such loan. (Orleans v. Platt, 99 U.
S. 677, 25 L. Ed. 404; Gas Co. v. San Francisco, 9 Cal. 453; Illinois Co. v. Arkansas City, 76
Fed. 271, 22 C. C. A. 171, 34 L. R. A. 518; Herring v. Modesto Irr. District, 95 Fed. 705;
Cronin v. Patrick Co., 89 Fed. 79; Argenti v. San Francisco, 16 Cal. 258; Chicago v. R. R.
Co., 244 Ill. 220, 91 N. E. 422, 135 Am. St. Rep. 316; Coffin v. Kearney Co., 57 Fed. 137, 6
C. C. A. 288; Bissell v. Jeffersonville, 24 How. 287, 16 L. Ed. 664; Lynde v. County, 16
Wall. 6, 21 L. Ed. 272; Comrs. v. Bolles, 94 U. S. 104, 24 L. Ed. 46; Comrs. v. Clark, 94 U.
S. 278, 24 L. Ed. 59; Board v. Randolph, 89 Va. 614, 16 S. E. 722; County v. Marcy, 97 U. S.
96, 24 L. Ed. 977; San Antonio v. Mehaffy, 96 U. S. 312, 24 L. Ed. 816; Evansville v. Dennet,
161 U. S. 434, 16 Sup. Ct. 613, 40 L. Ed. 760; 1 Dillon, Municipal Corporations, 4th Ed. sec.
549.)
[6] The contention of appellant, that the complaint fails to state a cause of action because
of the absence of an allegation that the notes sued upon were presented to the board of county
commissioners for allowance prior to the institution of the action, is without merit. The orders
of the board of county commissioners authorizing the issuance of the notes and their
subsequent issuance by the board constitute the same approved liquidated demands against
the county which do not require subsequent presentation before suit, in the event that they are
not paid in accordance with their terms. The fact that the notes cannot be regarded as
negotiable instruments will not affect their character as approved liquidated demands.
(Lincoln Co. v. Luning, 133 U. S. 529, 10 Sup. Ct, 363, 33 L. Ed. 766; Vincent v. Lincoln
Co., 62 Fed. 705; Lorsbach v. Lincoln Co., 94 Fed. 963; Ayres v. Thurston Co., 63 Neb. 96,
88 N. W. 178; Greene Co. v. Daniel, 102 U. S. 191, 26 L. Ed. 99; Parker v. Saratoga Co.,
106 N. Y. 392, 13 N. E. 308; Washoe Co. v. Humboldt Co., 14 Nev. 123; State v. Lander Co.,
38 Nev. 123, 141 (1914) First Nat'l Bank of San Francisco v. Nye County
Lander Co., 22 Nev. 71, 35 Pac. 300; 7 Am. & Eng. Ency. Law, 2d ed. 966; 11 Cyc. 587.)
[7-9] The board of commissioners of Nye County being without power to issue negotiable
paper as security for the loan obtained from the Nye and Ormsby County Bank, the notes sued
upon must be regarded as non-negotiable instruments; and viewing the notes as
non-negotiable instruments, the question is presented whether the answer of defendant sets up
a good defense to this character of security.
Section 46 of the civil practice act (Rev. Laws, sec. 4988) provides:
In the case of an assignment of a thing in action, the action by the assignee shall be
without prejudice to any set-off or other defense, existing at the time of, or before notice of,
the assignment; but this section shall not apply to a negotiable promissory note, or bill of
exchange, transferred in good faith, and upon good consideration, before due.
Under the provisions of this section, which is the only statute in this state bearing on the
question, the defendant has the right to interpose against the plaintiff any defense which it
might have against the Nye and Ormsby County Bank, were suit instituted by the latter
corporation, which defense accrued prior to notice of the assignment. (Elder v. Shaw, 12 Nev.
82; Haydon v. Nicoletti, 18 Nev. 299, 3 Pac. 473; Huntington v. Chittenden, 155 N.Y. 401,
50 N. E. 49; Scott v. Armstrong, 146 U. S. 499, 13 Sup. Ct. 148, 36 L. Ed. 1059.)
In the case of Stadler v. Bank, 22 Mont. 190, 56 Pac. 11, 74 Am. St. Rep. 588, it was held
that, notwithstanding a statute like ours, supra, the holder of non-negotiable securities was
only subject to such defenses as existed at the time of the transfer. This decision, however, is
based on the language of another statute which only referred to defenses existing at the time
of the transfer, and the latter statute was deemed controlling. Notwithstanding statutory
provisions substantially the same as were considered by the Montana court, the Supreme
Court of California has so construed the two statutes together as to subject the assignee
of a non-negotiable instrument to all defenses which the defendant might have against
the assignor prior to notice of the assignment.
38 Nev. 123, 142 (1914) First Nat'l Bank of San Francisco v. Nye County
were considered by the Montana court, the Supreme Court of California has so construed the
two statutes together as to subject the assignee of a non-negotiable instrument to all defenses
which the defendant might have against the assignor prior to notice of the assignment.
(McCabe v. Grey, 20 Cal. 510; Bank v. Gay, 101 Cal. 286, 35 Pac. 876; Haskins v. Jordan,
123 Cal. 161, 55 pac. 786.) See, also, to the same effect, Martin v. Pillsbury, 23 Minn. 175.
As before stated, the only statute in this state upon the question is the one quoted supra,
and this leaves no room even for construction.
It is alleged in the answer that the defendant had no notice of the assignment until long
after the Nye and Ormsby County Bank went into the hands of a receiver and shortly before
the suit was instituted. It is alleged in the answer that the defendant had on deposit in the Nye
and Ormsby County Bank on the day the notes, by their terms, became due and on the day the
bank closed its doors, a sum of money much greater than the total amount of the notes with
accrued interest; that the defendant offered to pay the notes at the time they became due, or
within a few days thereafter. It is well settled that no demand is necessary for a deposit in an
insolvent bank in order to set it off against a note in the hands of the receiver. (Colton v.
Drover, 90 Md. 85, 45 Atl. 23, 46 L. R. A. 388, 78 Am. St. Rep. 431; Thompson v. Trust Co.,
130 Mich. 508, 90 N. W. 296, 97 Am. St. Rep. 494.)
On the day the Nye and Ormsby County Bank closed its doors and went into the hands of a
receiver, the defendant was entitled to set off the amount of its deposit in the defunct bank
pro tanto, not only against the receiver, but against any assignee of the bank holding the notes
of the defendant county; such county having no notice of such assignment prior to the
suspension of the bank.
[10] We think the court did not err in refusing to make the receiver of the Nye and Ormsby
County Bank and the counties of Ormsby and Esmeralda parties to the action.
38 Nev. 123, 143 (1914) First Nat'l Bank of San Francisco v. Nye County
the counties of Ormsby and Esmeralda parties to the action. Questions presented in this
answer, as a basis for bringing in additional parties, can all be presented in the receivership
matter, and, we think, have no proper place in this action.
Many other questions have been discussed in the briefs which we deem unnecessary to
determine.
The judgment and the order sustaining the demurrer to the answer are reversed, with
directions to the court below to also modify its order to strike, if necessary, so as not to
exclude allegations in support of defendant's alleged defense of set-off.
On Petition For Rehearing
Per Curiam:
Rehearing denied.
____________
38 Nev. 143, 143 (1914) Knock v. Tonopah and Goldfield R. R. Co.
[No. 1931]
FREDERICK A. KNOCK, Respondent, v. TONOPAH AND GOLDFIELD RAILROAD
COMPANY (A Corporation), Appellant.
[145 Pac. 939]
Opinion of Talbot, C. J.
1. Appeal and ErrorVerdictConclusiveness.
Where the evidence is conflicting, the verdict will not be disturbed on appeal.
2. Master and ServantInjury to ServantContributory Negligence.
A railroad employee's failure to discover that the tongue in the knuckle on a car was broken was not
contributory negligence, where the tongue was broken on the previous day and the inspector failed to detect
it.
3. Appeal and ErrorQuestions of Fact.
Where testimony as to matters essential to a recovery is contradicted by physical facts, a verdict contrary
to the physical facts must be set aside, but testimony contrary to a physical fact as to a matter not
controlling affects only the credibility of the witnesses.
4. New TrialConduct of Counsel and Juror.
That the attorney for the successful parties dined at the same table with a juror in a hotel does not alone
justify the setting aside of the verdict.
38 Nev. 143, 144 (1914) Knock v. Tonopah and Goldfield R. R. Co.
5. Appeal and ErrorExceptionsImproper Argument.
Where statements made before the jury by counsel for the successful party were to some extent provoked,
and no exception was taken to them, the judgment would not be reversed, though the statements were
erroneous.
6. DamagesPunitive DamagesInjury to Servant.
Where injury to a railroad employee resulted from a broken tongue and a knuckle on a car not easily
observable, or from the engineer backing his engine without signal, a verdict for punitive damages was
unauthorized.
7. DamagesPersonal InjuriesExcessive Damages.
A verdict for $25,500 for the loss of the right arm below the elbow of a man 29 years of age, with eleven
years' experience in railroading in various positions, and earning about $170 a month as conductor and
brakeman, is excessive, and will be reduced to $15,000.
Appeal from the Fifth Judicial District Court, Nye County; Mark R. Averill, Judge.
Action by Frederick A. Knock against the Tonopah and Goldfield Railroad Company.
From a judgment for plaintiff, defendant appeals. Conditionally affirmed.
Campbell, Metson & Brown, for Appellant.
Berry & Cole and V. S. Thomas, for Respondent.
By the Court, Talbot, C. J.:
The plaintiff, a man 29 years of age, with eleven years of experience in railroading in
various positions, and earning on an average about $170 a month as a conductor and
brakeman, instituted this action to recover $25,500 damages for the loss of his right forearm,
which was crushed between the couplers of ore cars while he was endeavoring to effect a
coupling. The accident necessitated the amputation below the elbow. A verdict was rendered
in favor of the plaintiff for the full amount claimed. On this appeal from the judgment and
from the order denying the motion for a new trial, it is contended that the evidence is
insufficient to justify the verdict; that misconduct of counsel for respondent warrants a
reversal; that the court improperly instructed the jury; and that the damages are excessive.
[1] The opening brief gives a careful analysis of the conflicting testimony.
38 Nev. 143, 145 (1914) Knock v. Tonopah and Goldfield R. R. Co.
conflicting testimony. At other times and on the previous day he had acted as conductor of the
appellant company. On the morning of the accident appellant was serving as brakeman. On
his theory of the case, and under his testimony, the engineer backed up twice on his signal,
but no coupling was accomplished on either compact, and for the purpose of ascertaining
whether ore had fallen into it he went to examine the knuckle of the car, which was one of
four or five desired to be coupled to the cars attached to the engine, and while he was making
such examination the engineer, without signal, backed up the third time and crushed
respondent's arm. His evidence in this regard is contradicted by the engineer and fireman, and
appellant claims that the accident resulted from respondent's own carelessness in trying to
make a gravity coupling while the cars, which were free from the engine, were moving on the
grade. Under the conflicting evidence it was within the exclusive province of the jury to
determine whether the accident was caused by the backing up by the engineer without signal,
and, if it was so caused, the plaintiff is entitled to recover.
[2] For appellant it is also claimed that Knock should have been aware of the broken
tongue in the knuckle which failed to couple, because, on the previous day, while he was
acting as conductor, the engineer, owing to Knock's failure to signal, had backed into some
cars, including this one, with such force as to break a knuckle on another car upon which a
new knuckle had been placed, after examination by the company's inspector. If the tongue in
the knuckle were broken on the previous day, the inspector failed to detect it, and the failure
of Knock to become aware that it was broken was not such carelessness, or want of care on
his part, as would warrant the engineer to back up without signal.
[3] It is urged that the case should be reversed because the plaintiff's testimony is
contradicted by physical facts. If any physical fact made it impossible for the engineer to back
up without signal and crush the respondent's arm, such fact would control, and the testimony
in the case of respondent would fall.
38 Nev. 143, 146 (1914) Knock v. Tonopah and Goldfield R. R. Co.
of respondent would fall. If his testimony regarding any matter essential to his recovery were
contradicted by any physical fact, the case would have to be remanded. Testimony contrary to
a physical fact regarding a matter which is not controlling may weaken the credibility of the
witness, but is not ground for reversal.
[4-5] It appears that one of the counsel for respondent dined at the same table with one of
the jurors in the hotel, but it is not shown he paid for the juror's meal, nor that anything
improper in regard to the case appeared between them. It is urged that statements made before
the jury, by counsel for respondent, were erroneous, but as they were to some extent
provoked, and no exception was taken to them, they do not warrant a reversal.
The court instructed the jury that, under the law of this state, common carriers are liable to
employees for damages which may result from negligence of the officers, agents, or
employees of the common carrier, or by reason of any defect or insufficiency due to their
negligence in its cars, engines, and appliances. The statute upon which this instruction is
based, the liability act of 1907 (Stats. 1907, c. 214), has been sustained as constitutional by
this court in Lawson v. Halifax Mining Co., 36 Nev. 591, 135 Pac. 611, 138 Pac. 261; writ of
error to Supreme Court of the United States granted, 36 Nev. 646.
[6] If the accident resulted from a broken tongue and a knuckle not easily to be observed, or
from the engineer backing without signal, or if the facts be as claimed by either the appellant
or the respondent, there is nothing in the case which would warrant a verdict for punitive
damages against the appellant, and respondent's recovery should be limited to a just and full
compensation for the injury sustained.
[7] Counsel for appellant say that, if it be held that there is a liability against the appellant,
and if damages are to be allowed, they are of the opinion that, considering all the
circumstances, and the Burch case as a fair standard of measurement, a verdict of $10,000
would have been fair and ample. Counsel for respondent contend that, under the Burch case,
the full amount of the verdict should be allowed.
38 Nev. 143, 147 (1914) Knock v. Tonopah and Goldfield R. R. Co.
that, under the Burch case, the full amount of the verdict should be allowed.
In that case (32 Nev. 75, 104 Pac. 225, Ann. Cas. 1912b, 1166) we sustained a verdict for
$20,000. When injured, Burch was 37 years old, earning about $100 a month, and was
gradually advancing in the defendant's employment. While boarding a caboose, he was struck
by a switch stand, thrown upon the track, and the cars ran over his left leg and right foot,
necessitating amputation of the left leg three inches above the knee and three toes of his right
foot. He grew weaker physically, and lost from fifteen to eighteen pounds. At times an
artificial leg could be worn, but it irritated the stump and made it sore. By the contesting of
his case in different courts, Burch had been delayed for many years in obtaining relief, and he
had previously obtained a verdict for $18,000.
Although the respondent's was a most severe injury for the loss of an arm below the elbow,
and, as said by counsel for respondent, the loss of a right arm is more serious than that of the
leg, when we consider all the circumstances relating to the two cases, we conclude that the
injury resulting to Knock was not as serious as the one caused to Burch.
Among the many cases in the books, we do not find any in which a sum as large as that
awarded to respondent by the verdict was allowed to stand for the loss of an arm under
conditions and results no more serious than those which relate to or flow from the accident
suffered by respondent.
Among the largest verdicts sustained for somewhat similar injuries is that in the Fullerton
case, 167 Fed. 1, 92 C. C. A. 463, in which there was an award of $16,500 to the first mate of
a vessel, earning $150 per month, for the loss of his right arm near the shoulder, accompanied
with much pain and suffering.
In Cleveland, Cinn., C. &. St. L. Ry. Co. v. Hadley, 170 Ind. 204, 82 N. E. 1025, 84 N. E.
13, 16 L. R. A. n.s. 527, 16 Ann. Cas. 1, the Supreme Court of Indiana sustained a judgment
for $10,000 for an injury to the elbow joint, caused by the falling of a window sash,
affecting chiefly the ulnar nerve, resulting in a numb feeling in the arm and the little and
ring fingers, and a shrunken condition of the muscles of the arm, and loss of grip."
38 Nev. 143, 148 (1914) Knock v. Tonopah and Goldfield R. R. Co.
judgment for $10,000 for an injury to the elbow joint, caused by the falling of a window sash,
affecting chiefly the ulnar nerve, resulting in a numb feeling in the arm and the little and ring
fingers, and a shrunken condition of the muscles of the arm, and loss of grip. (Forrester v. S.
P. Co., 36 Nev. 296, 134 Pac. 769, 48 L. R. A. n. s. 1.)
Verdicts have been sustained for the loss of an arm, for $10,000 in St. Louis S. R. R. Co. v.
Groves, 44 Tex. Civ. App. 63, 97 S. W. 1084, in favor of a brakeman 21 years of age, earning
$100 per month, who lost the right arm between the shoulder and elbow; for $12,500 in
Rodney v. St. Louis S. R. R. Co., 127 Mo. 676, 28 S. W. 887, 30 S. W. 150, in favor of a
switchman 28 years of age, earning $100 per month; for $7,000 in Atchison R. R. Co. v.
Sledge, 68 Kan, 321, 74 Pac. 1111, in favor of a switchman 23 years of age, earning $80 per
month; in Sobieski v. St Paul R. Co., 41 Minn. 169, 42 N. W. 863, for $5,000, in favor of a
switchman 30 years of age, for loss of arm below the elbow; for $5,000 in Mobile R. Co. v.
Harmes, 52 Ill. App. 650, in favor of a brakeman.
Verdicts have been held excessive for the loss of an arm, for $20,000 in Chicago R. Co. v.
Kane, 70 Ill. App. 676, in the case of a laborer 19 years of age, earning $1 per day, and who
had the arm amputated near the shoulder; for $13,000 in Louisville R. Co. v. Lowe (Ky.) 66 S.
W. 736, in favor of a train inspector 34 years of age earning $1 per day; for $10,000 in Illinois
Central R. R. Co. v. Welch, 52 Ill. 184, 4 Am. Rep. 593, in favor of a brakeman who lost the
left arm.
Verdicts for $15,000 for the loss of an arm were reduced to $10,000 in the case of Texas R.
Co. v. Hartnett, 33 Tex. Civ. App. 103, 75 S. W. 809; injury to locomotive engineer who lost
the left arm near the elbow joint, in Silberstein v. Houston Str. Co., 52 Hun, 611, 4 N. Y.
Supp. 843; and in O'Donnell v. American Sugar Refining Co., 41 App. Div. 307, 58 N. Y.
Supp. 640, in which case a laborer lost the right arm below the elbow.
Reference is made to numerous other cases relating to such injuries in the extensive note
in 16 Ann. Cas. 21.
38 Nev. 143, 149 (1914) Knock v. Tonopah and Goldfield R. R. Co.
We are not unmindful of the serious consequences relating to the loss of an arm; and,
considering respondent's health and general condition, and occupations which he may learn to
pursue, but in which he may not earn nearly so much as in his former employment, and the
disability under which he must labor through life, we conclude that, under the circumstances
disclosed by the present record, $15,000 would be a fair compensation for the injury which he
sustained.
If within fifteen days respondent file in this case his written consent that the judgment be
modified by reducing the amount allowed for damages for the injuries sustained to $15,000,
an order may be made that the judgment be modified accordingly, and that it stand as so
modified. If such consent be not so filed, the case will be remanded for a new trial.
Norcross, J.: I concur in the judgment.
[NoteThis case having been submitted prior to McCarran J., becoming a member of the
court, he did not participate.]
____________
38 Nev. 150, 150 (1914) Nesbitt v. Cherry Creek Irrigation Co.
[No. 2022]
JAMES A. NESBITT, Respondent, v. CHERRY CREEK IRRIGATION COMPANY,
Appellant.
[145 Pac. 929]
1. Principal and AgentUndisclosed PrincipalAction Against Agent and Undisclosed
PrincipalElection of Remedies.
Where an undisclosed principal denied all liability for goods sold to his agent, without asserting that the
seller should elect whether to hold the agent or the undisclosed principal, he waived his right to compel an
election, and could not complain of a prior default judgment against the agent, rendered in the same action.
2. CorporationsPurchase of Goods for its BenefitLiability.
Where goods furnished by a seller were furnished for the use of a corporation after its incorporation, the
corporation was equitably and legally liable, though the purchase for it was made by its undisclosed agent.
3. Principal and AgentUndisclosed PrincipalLiabilityElection.
Where a seller brought an action against the agent and the undisclosed principal, and obtained a default
judgment against both, which was set aside as to the undisclosed principal, who denied all liability, the
seller, prosecuting the action against the principal, elected to hold him responsible, and he could not
complain of the judgment against the agent.
4. Principal and AgentUndisclosed PrincipalLiabilityElection.
A seller, who sued an agent and his undisclosed principal, without knowledge that the agent acted as
agent, did not elect to hold the agent alone, and the principal could not escape liability.
5. CorporationsPurchase of Goods by AgentLiability.
Where an agent of a corporation purchased goods for it, the fact that the corporation, after being served
with summons in an action for the price, gave the agent property to reimburse him for the merchandise sold
by the seller, and for advances made by the agent before and after the corporation was incorporated, did not
defeat liability of the corporation to the seller.
Appeal from Fourth Judicial District Court, Lincoln County; E. J. L. Taber, Judge.
Action by James A. Nesbitt against the Cherry Creek Irrigation Company and another.
From a judgment for plaintiff, defendant appeals. Affirmed.
Clay Tallman, for Appellant.
Charles Lee Horsey, for Respondent.
38 Nev. 150, 151 (1914) Nesbitt v. Cherry Creek Irrigation Co.
By the Court, Talbot, C. J.:
This action was brought to recover $1,814.39 for goods, wares, and merchandise furnished
by plaintiff, and for $100 alleged to have been advanced and loaned by plaintiff, and for
$1,544.29 for goods sold and delivered by the Hodges-Cook Mercantile Company on a claim
assigned to the plaintiff. Judgment by default was entered against both defendants. Thereafter
the Cherry Creek Irrigation Company, the only appellant, moved to set aside the default and
judgment entered against that company, asserting that it had a meritorious and complete
defense to their action. This motion was accompanied by affidavits, including one by the
defendant G. G. Davis, stating that he was familiar with the causes of action set forth in
complaint; that all of the goods and merchandise were purchased by him from James A.
Nesbitt and the Hodges-Cook Mercantile Company, and that they well knew that he was
personally liable for the indebtedness, and that the Cherry Creek Irrigation Company was not
responsible for the same; that the $100 loaned by James A. Nesbitt was loaned to Davis
personally. The court granted the motion to set aside the judgment, and that company filed its
separate answer, denying the allegations of the complaint and the liability of the company,
and the case went to trial on it merits.
There was no dispute over the goods furnished or the amounts of the claims sued upon.
The company contended that Davis alone was liable. The essential facts shown by the
evidence and the findings of the court are undisputed. Davis investigated and undertook an
extensive irrigation project for storing and conserving the waters of Cherry, Cottonwood, and
Pine Creeks, mainly in Nye County, by means of a reservoir at the junction of these creeks.
The water so conserved was to be used in Lincoln County. Davis secured in his own name
from the state engineer a permit to appropriate the waters of the three creeks, and also secured
in his own name a reservoir right of way from the United States. It was a part of his original
plan to organize a corporation for his irrigation project.
38 Nev. 150, 152 (1914) Nesbitt v. Cherry Creek Irrigation Co.
project. Before commencing the actual construction of the dam, Davis arranged with a
number of men to work for a share of stock a day, this stock to be issued as soon as the
corporation was formed, and their supplies were to be furnished free of charge. At that time
the stock was valued at $3 per share. About the time the construction work was commenced
Davis began buying supplies from Nesbitt, to be used at the project, and for many months he
purchased from Nesbitt from $500 to $800 a month. For a long time these were practically
cash transactions, and the accounts did not run more than one or two months without being
fully paid. Davis paid Nesbitt all that was owing up to May 1, 1909, and did not pay any more
to Nesbitt after that date, but continued to purchase supplies from Nesbitt in May, June, and
July of that year, and also in the summer of that year obtained supplies from the
Hodges-Cook Mercantile Company.
At the organization meeting of the incorporators and stockholders of the Cherry Creek
Irrigation Company on December 16, 1908, G. G. Davis was elected secretary and treasurer.
At that meeting the directors adopted a resolution authorizing the issuance of 130,000 shares
to Davis, and the issuance of not to exceed 12,000 shares of stock for distribution to the men
for their work in pursuance of their understanding with Davis. The stock was issued
accordingly in April, 1909. Thereupon Davis executed and delivered a deed to the company,
dated April 2, 1909, conveying to the company the reservoir, right of way, water rights, and
improvements, with the appurtenances, privileges, and franchises incident thereto, and all the
interests of Davis in the property, including the reservoir site, dam, headgates, culverts,
ditches, and spillways. The deed was recorded in the office of the county recorder in Lincoln
County on the 3d day of April, 1909. Davis was president and manager of the affairs of the
company at all times after the directors' meeting, and thereafter had full charge of all that was
done at the project.
The court found that in selling goods to Davis, the plaintiff and his assignor, while they
necessarily gave credit to Davis, not knowing any other person in the transaction, still held
to the project, and extended credit to Davis chiefly because of his extensive operations in
connection with this irrigation work.
38 Nev. 150, 153 (1914) Nesbitt v. Cherry Creek Irrigation Co.
credit to Davis, not knowing any other person in the transaction, still held to the project, and
extended credit to Davis chiefly because of his extensive operations in connection with this
irrigation work. In May, June, and July, 1909, Davis and some thirty or forty men were
engaged in completing a twelve-mile canal in connection with the project. The court further
found that Davis, in purchasing goods and supplies from plaintiff and his assignor, did not
buy any of the goods for himself or for his own benefit, but purchased all of them as the agent
of the defendant company, and that it was, in fact, the company that bought all of the goods
and supplies, through its manager and general agent, G. G. Davis, from the plaintiff and his
assignor; that all of the goods were used by the company at the irrigation project, and that the
company received the exclusive benefit of all goods and merchandise furnished; that Davis,
in paying out his own money, did so, at least at all times subsequent to the organization of the
company, not for himself, but for the company, and that the understanding on the part of the
directors of the affairs of the corporation was that the money was to be spent in behalf of the
corporation for its exclusive benefit, and that Davis was to receive stock, not only for all
property which he was to deed over to the company, but for all moneys expended by him in
connection with the project.
The judgment was rendered in favor of the plaintiff for the amount claimed and for the
supplies furnished as alleged in the second and third causes of action of the complaint. The
$100 alleged to have been loaned in the second cause of action was found to be for Davis
personally, and is not included in the judgment.
[1] The main objection urged upon the appeal is that, as Davis was the agent and the
company the undisclosed principal, the plaintiff should have elected to hold either Davis or
the company, and is not entitled to a judgment against both. It does not appear that, at the
time the judgment was taken by default against Davis and the company, the plaintiff was
aware of this condition. If, in moving to set aside the default, by answer, and at the trial,
the company, instead of denying and trying to avoid all liability, had claimed, as now
asserted, that the plaintiff must elect which it will hold, the company would be in a better
position to have its contention determined.
38 Nev. 150, 154 (1914) Nesbitt v. Cherry Creek Irrigation Co.
moving to set aside the default, by answer, and at the trial, the company, instead of denying
and trying to avoid all liability, had claimed, as now asserted, that the plaintiff must elect
which it will hold, the company would be in a better position to have its contention
determined. Having contested on the ground that it is in no way liable, without asserting at
the trial that the plaintiff should elect, we think the company has waived its right, if any, to
now assert that the plaintiff cannot recover because it did not elect to hold either the company
or Davis when it was making a contention against any liability.
[2-3] As all of the goods for which payment was not made, and for which recovery is now
sought, were furnished for the use and benefit of the company after its incorporation, and
after it had acquired the property by deed, the company is equitably and legally liable for the
merchandise so furnished. The sole defense being on the merits at the trial, the main doctrine
of election should not apply. It is apparent that the plaintiff, by suing the company, by going
to trial, and upon this appeal, elects to hold the company responsible for the goods furnished.
If under these circumstances Davis were before the court, claiming that he should be released
from the judgment because the plaintiff has elected to hold the company for the value of the
supplies furnished to the company and for the company on his order, it would become
necessary to determine the questions presented by the briefs, relating to whether the plaintiff
is entitled to judgment against both or only one of the defendants.
[4] It should not be held that the plaintiff's act in bringing suit against both Davis and the
company, before the plaintiff was aware that Davis was acting as the undisclosed agent of the
company, amounted to an election by plaintiff to hold Davis, and that therefore the company
cannot be held responsible. With as much reason it could be said that, by suing both, the
plaintiff elected to hold the company, and that therefore Davis was released, and that
consequently neither the company nor Davis would be liable.
38 Nev. 150, 155 (1914) Nesbitt v. Cherry Creek Irrigation Co.
nor Davis would be liable. If the plaintiff had first sued Davis, and had later brought an action
against the company for the same debt, the company would be in a better position to claim
that the plaintiff elected to hold Davis, and that therefore the company was released. In his
opinion the learned district judge said:
In the present case both the principal and the agent were joined as defendants. No motion
was made by either of the defendants at any time that the plaintiff be required to elect which
of the defendants he would look to. Even after the evidence was in, no such motion was
made. Certainly the plaintiff did not elect to hold either the principal or agent by commencing
suit against both, and the judgment which now stands upon the record against the agent was
entered simultaneously with the judgment that was entered against the defendant company;
both judgments being entered by the clerk of the court by default. The defendant company
succeeded in having the default against it set aside, thus leaving the default judgment against
the agent in full force and effect. In view of all the circumstances of this case, the court does
not believe that it would be within the spirit of the rule to hold that the plaintiff had elected to
hold only the agent.
[5] If the company had raised an issue in the answer, or had asserted at the trial that, if the
company were liable at all, it was only as an undisclosed principal, and that therefore the
plaintiff must elect which he will hold, or if the goods for the price of which recovery is
sought had been sold and delivered to Davis before, instead of to the company after, it had
been incorporated, and the property had been deeded by Davis to the company, more serious
questions would be presented. The court found under the testimony of Davis that he regarded
himself as the company. The fact that he had the company give him stock after the property
had been deeded to the company, and after the company had been served with summons in
this action and had notice of the plaintiff's claims, to reimburse Davis for the merchandise
sold by the plaintiff and his assignor, and for advances made by Davis before and after the
company was incorporated and the property deeded to the company, is no reason why the
company should not pay the plaintiff for the merchandise furnished.
38 Nev. 150, 156 (1914) Nesbitt v. Cherry Creek Irrigation Co.
the plaintiff and his assignor, and for advances made by Davis before and after the company
was incorporated and the property deeded to the company, is no reason why the company
should not pay the plaintiff for the merchandise furnished.
The judgment of the district court is affirmed.
Norcross, J.: I Concur.
[NoteMcCarran, J., having become a member of the court after the argument and
submission of the case, did not participate in the opinion.]
____________
38 Nev. 156, 156 (1914) Burrus v. Nevada-Cal.-Ore. Ry. Co.
[No. 2031]
JOSEPH BURRUS, Respondent, v. THE NEVADA-CALIFORNIA-OREGON RAILWAY,
Appellant.
[145 Pac. 926]
1. CourtsContracts for Special TrainInterstate CommerceJurisdiction of State Court.
One contracting with a railroad company for a special train to run from a point in the state to a point in a
sister state and return may sue the company in a state court for a breach of the contract, without previous
application to the Interstate Commerce Commission.
2. PleadingAmendmentsAnswer.
Where a railroad company, when sued for a breach of contract for a special interstate train, filed a
demurrer which was overruled, and a motion to strike out parts of the complaint, which was denied, and
then filed an answer, refusal to permit amendment of the answer during the trial many months after the
filing of the complaint, by setting up a failure to comply with the interstate commerce act in the
establishment of rates for special trains, and to plead the invalidity of the contract by reason thereof, was
proper.
3. CarriersBreach of ContractMental Anguish.
A railroad company, breaching its contract to furnish a special train to carry speedily for medical
treatment a son of the person contracting for the train, is liable to the person for mental anguish caused by
the breach causing delay in the son's removal, where the company was, at the time of the making of the
contract, advised of the necessity of the speedy removal of the son for medical treatment and the danger to
his life by any delay in removal.
38 Nev. 156, 157 (1914) Burrus v. Nevada-Cal.-Ore. Ry. Co.
4. CarriersContracts for Special TrainsBreach.
One contracting and paying for a special train is entitled to the services of the train, and the carrier
running it to a farther point under false representations, and attaching other cars to it, is guilty of a breach
of the contract.
5. DamagesPunitive DamagesWhen Allowed.
Punitive damages should be awarded only where the wrong-doer is unduly negligent or the acts are
unnecessarily aggravated.
6. CarriersContracts for Special TrainBreachPunitive DamagesMental
AnguishExcessive Damages.
Where a railroad company contracting to furnish a special train for the speedy removal of plaintiff's son
to a place for medical treatment breached the contract by delaying the removal for three hours with
knowledge of all the facts, a verdict for $10,000 was excessive, though punitive damages could be allowed
and compensation for mental anguish could be recovered, and the verdict must be reduced to $5,000.
Appeal from Second Judicial District Court, Washoe County; L. N. French, Judge,
presiding.
Suit by Joseph Burrus against the Nevada-California-Oregon Railway. From a judgment
for the plaintiff, defendant appeals. Conditionally affirmed.
James Glynn, for Appellant.
Mack, Green, Brown & Heer, for Respondent.
By the Court, Talbot, C. J.:
This action was brought to recover damages in the sum of $20,000 for the breach of a
contract to furnish a special train. From the verdict and judgment in favor of the plaintiff for
$10,000, and from an order denying motion for a new trial, this appeal is taken by the
company.
Defendant operates a railroad from Reno in this state to Doyle and Amedee in California.
On the evening of January 21, 1911, the plaintiff was informed that his son, who had been
caught in a storm and frozen, was suffering from blood poisoning, near Doyle, and it was
necessary that he be removed speedily to Reno for medical treatment, and that death would
likely result if such removal and treatment were delayed. Under the allegations and evidence
of plaintiff it appears that the plaintiff contracted with the appellant, for the consideration of
$125, which he paid in advance, for a special train to leave Reno at 6 o'clock the next
morning and to take him to Doyle and return immediately to Reno with him and his son.
38 Nev. 156, 158 (1914) Burrus v. Nevada-Cal.-Ore. Ry. Co.
$125, which he paid in advance, for a special train to leave Reno at 6 o'clock the next
morning and to take him to Doyle and return immediately to Reno with him and his son.
According to the testimony of the plaintiff, at the time of the agreement for the special train,
the plaintiff informed the appellant that he wished to bring his son to Reno for medical
attention, of the location and serious illness of his son, and the necessity for his speedy
removal to Reno for treatment, and the danger to the life of his son for delaying such removal.
The train was not started at 6 o'clock, as agreed, but about twenty minutes later. Instead of
being held in readiness and returning immediately with the plaintiff and his son to Reno, after
its arrival at Doyle it was represented to plaintiff by defendant that it was necessary to run the
train to Amedee, twenty miles farther, for the purpose of procuring fuel oil for the return trip.
Plaintiff believed and relied upon this representation, and was not aware until later that it was
not necessary to go to Amedee for fuel oil, and that none was taken on there. In going to
Amedee and returning, the train was gone for about two hours. No oil was obtained at
Amedee, and it was not necessary to procure any upon the whole trip. At Amedee the
defendant took on the train a number of passengers for Reno and collected from them the
usual fare. The train was further delayed upon the return to Doyle by attaching to it a freight
car loaded with cattle. By reason of the trip to Amedee and the impeding of the train with the
cattle car, it is claimed that the train was delayed for more than three hours in reaching Reno.
It is alleged that the running of the train to Amedee, the misrepresentations as to the reasons
therefor, and the taking on of the passengers and the car of cattle, and the delay consequent,
were willful and malicious, and that by reason of such wanton, wrongful, and negligent acts
the plaintiff was caused to suffer much anxiety and great mental pain and anguish. Damages
were claimed by reason of the premises and of the wrongful, wanton, willful, and negligent
acts of the defendant.
[1] The appellant contends that, as recovery is sought for the breach of an interstate
contract and for damages for mental suffering, the case is one primarily and exclusively
within the jurisdiction of the Interstate Commerce Commission to make proper findings
and preparations before any action could be maintained, and that the district court was
without jurisdiction.
38 Nev. 156, 159 (1914) Burrus v. Nevada-Cal.-Ore. Ry. Co.
for the breach of an interstate contract and for damages for mental suffering, the case is one
primarily and exclusively within the jurisdiction of the Interstate Commerce Commission to
make proper findings and preparations before any action could be maintained, and that the
district court was without jurisdiction. We are cited to Tex. & Pac. Ry. v. Abilene Cotton Oil
Co., 204 U. S. 426, 27 Sup. Ct. 350, 51 L. Ed. 553, 9 Ann. Cas. 1075, and other cases holding
that a shipper cannot maintain an action at common law in the state court for excessive
freight rates exacted on interstate shipments, where the rates charged were those duly fixed by
the carrier according to the act and had not been found by the Interstate Commerce
Commission to be unreasonable. If it be conceded that the Interstate Commerce Commission
has exclusive original jurisdiction to determine the unreasonableness of interstate rates, it
should be remembered that this is a different kind of a case and one to recover damages for
the failure of the appellant to properly run a special train as agreed. If the amount of damages,
or the reasonableness of rates, or whether charges are according to schedule, must first be
determined by the Interstate Commerce Commission before suit on the various causes for
damages, or torts, or breach of contracts of interstate carriers could be maintained, great
would be the burdens of the commission, and long, troublesome, and expensive the delays
which would result to litigants.
[2] There is an assignment that the court erred in its refusal to allow the defendant to
amend the answer by setting up its failure to comply with the requirements of the interstate
commerce act in the establishment of rates for special trains, or to plead the illegality of its
contract by reason of its failure to comply with the law. The original complaint was filed on
April 3, 1911, and after demurrer was sustained the amended complaint was filed on June 24,
1911, to which a demurrer was filed on July 3, which demurrer was argued and overruled on
August 16. It did not specify the point covered by the proposed amendment. On November 3,
1911, appellant obtained an order further extending its time to answer until November 13.
38 Nev. 156, 160 (1914) Burrus v. Nevada-Cal.-Ore. Ry. Co.
November 8 defendant filed a motion to strike out certain portions of the amended complaint,
and this motion was heard and denied on the following day. On November 13, more than
eight months after the filing of the complaint and more than six months after the filing of the
amended complaint, defendant filed its amended answer, upon which the cause was heard.
Two days after the beginning of the trial on November 20, and after the jury had been
impaneled, defendant objected to the taking of the testimony on the grounds that the
complaint was insufficient because it did not show compliance by the defendant with the
interstate act. The objection was overruled, and no effort was made to amend the answer until
after evidence had been heard during that day and part of the next, when defendant, without
notice, applied to the court for leave to file an amendment to its answer.
Later, and after the defendant had introduced testimony and upon the following morning,
motion for leave to amend the answer was renewed upon the affidavit of the defendant's
attorney. This motion was overruled. As often held and as usual in general practice,
amendments should be liberally allowed; but it is not every character of amendment which
should be allowed after months of dilatory tactics and after the trial has progressed. Different
courts have held that an amendment will not be permitted to an answer at any stage of the
proceedings for the purpose of setting up such an unconscionable defense as the statute of
limitations. The court properly refused to allow such a character of an amendment after so
long a delay and because it sought to set up the appellant's own wrong by failing to comply
with the law in matters not strictly germane to the cause of action or justifying the appellant
in afflicting suffering and damage upon the plaintiff. Without the amendment there is no
allegation or proof and no presumption that the appellant failed to comply with the law in
having its rates for special train fixed and published, if any such failure and noncompliance
with the law could be deemed a defense which would relieve the appellant from the
payment of the damages occasioned by its failure to properly run the special train.
38 Nev. 156, 161 (1914) Burrus v. Nevada-Cal.-Ore. Ry. Co.
failure and noncompliance with the law could be deemed a defense which would relieve the
appellant from the payment of the damages occasioned by its failure to properly run the
special train. If, by charging more or less than scheduled or approved rates, common carriers
may be relieved from their wrongful acts, the public might have little protection.
[3] It is urged that no recovery may be had for mental anguish aside from physical
suffering. Many of the cases, and especially the older ones, so hold. Some of these decisions
have already been reversed, and the tendency of modern authority is to allow damages for
mental anguish where it is clearly within the terms of the contract or transaction and the
knowledge of, and negligently or wantonly caused by, the defendant. (Western Union
Telegraph Co. v. Crocker, 135 Ala. 492, 33 South. 45, 59 L. R. A. 398; Western Union
Telegraph Co. v. Coffin, 88 Tex. 94, 30 S. W. 896; McCoy v. Milwaukee St. R. Co., 88 Wis.
56, 59 N. W. 453; Kelley v. Kelley, 8 Ind. App. 606, 34 N. E. 1009, 36 N. E. 165; Willis v.
Western Union, 69 S. C. 531, 48 S. E. 538, 104 Am. St. Rep. 828, 2 Ann. Cas. 52 and note, p.
55, and cases cited.)
Regarding freight: Engle v. Simmons, 148 Ala. 92, 14 South. 1013, 7 L. R. A. n.s. 96, 121
Am. St. Rep. 59, 12 Ann. Cas. 740 and note.
This court has already put itself in accord with this modern and better doctrine in Barnes v.
Western Union, 24 Nev. 125, 50 Pac. 438, 77 Am. St. Rep. 791, which case has been
considered favorably and followed by courts in other states. The defendant here, as well as all
common carriers, dependent upon the right of eminent domain, its franchise, and the people
of the community for its support, owes a duty to the public and its patrons, in addition to the
moral obligation upon it and all honest men, to make due effort to keep the terms of the
contract.
[4] Aside from any question of mental suffering, the plaintiff was entitled to the proper
service of the special train for which he paid. Under Forrester v. Southern Pacific Co.,
38 Nev. 156, 162 (1914) Burrus v. Nevada-Cal.-Ore. Ry. Co.
Pacific Co., 36 Nev. 247, 134 Pac. 753, 136 Pac. 705, 48 L. R. A. n. s. 1, and cases there
cited, the company is liable for punitive damages. If unaware of the ethics which should guide
men in business transactions, or unwilling to honestly observe its agreement for which it had
collected a due consideration, it should be enlightened by being required to pay the damages
incurred by the flagrant and intentional breach of the plain terms of its contract made under
misrepresentation, and not allowed to thwart justice on the claim that it was guilty of a crime
because it had not filed schedules required by the lawa matter over which plaintiff had no
control. It must be assumed that, aside from the false pretense that the train had to go to
Amedee for fuel oil, the company was well aware that, when a father paid for a special train
in an effort to save the life of his son, he was entitled to something more than an
accommodation cattle train. It was the duty of the company to send a regular train to care for
its regular passengers and cattle shipments it the special train was able to cover the road.
[5] Recovery for mental suffering should be limited to special cases, and punitive damages
should be awarded only where the defendant is unduly negligent or the acts are unnecessarily
aggravated. Exemplary damages may be allowed for refusing to set off baggage at a station to
which a ticket has been purchased. (Webb v. Railroad Co., 76 S. C. 193, 56 S. E. 954, 9 L. R.
A. n. s. 1218, 11 Ann. Cas. 834, and note, p. 837.)
The company was fully informed regarding the serious condition of the plaintiff's son, the
necessity that he be speedily brought to Reno for medical treatment in order to save his life,
and consequently of the great anxiety which would result to a fond parent who had paid for a
special train in order to save his son. There is no excuse, legally or morally, for the willful,
flagrant, and deceptive breach by the appellant of the contract for the special train. Many
cases appear in the books where common carriers have been held liable for failure to furnish
transportation in accordance with ordinary tickets, and a railroad company should be
likewise liable for a failure to comply with its contract for a special train.
38 Nev. 156, 163 (1914) Burrus v. Nevada-Cal.-Ore. Ry. Co.
transportation in accordance with ordinary tickets, and a railroad company should be likewise
liable for a failure to comply with its contract for a special train. In reviewing many decisions
in the Forrester case, we said:
In the case of Morrison v. The John L. Stephens, 17 Fed. Cas. 838, the libelant Morrison
paid for passage and the exclusive use of a stateroom for himself and for his wife, who was
an invalid, from New York to San Francisco. Relying on the waybill, which was different
from the ticket Morrison had secured, the agent at Panama attempted to place a male
passenger in the stateroom with Morrison and his wife. Morrison objected, and pleaded for
the exclusive use of the room for himself and wife, but she was given a berth in a stateroom
with two other females from Panama to San Francisco, and he was deprived of having the
exclusive company of his wife. Damages in the amount of $2,500 were awarded.
[6] However, considered as compensation for mental anguish for the plaintiff under the
peculiar circumstances of this case, or as punitive damages, either of which theories would
support the verdict against appellant, we regard the amount as awarded to be excessive in
consideration of the delay of about three hours occasioned by the breach of a contract for a
trip which, necessarily, occupied nearly three times as many hours. If several thousand dollars
an hour were not held to be excessive and the train had been long delayed, it might take all
the little railroad to satisfy a judgment in favor of the plaintiff.
We have examined other assignments upon which so much reliance does not appear to be
placed, and we find no error in the record aside from this.
If within ten days the plaintiff files in this court his consent that the judgment be modified
so as to reduce the amount allowed him for damages to $5,000, an order will be made that the
judgment stand as so modified; otherwise the district court will be directed to grant a new
trial.
38 Nev. 156, 164 (1914) Burrus v. Nevada-Cal.-Ore. Ry. Co.
On Petition For Rehearing
Per Curiam:
Rehearing denied.
[NoteOn writ of error to Supreme Court of the United States,]
____________
38 Nev. 164, 164 (1914) Herring-Hall-Marvin Safe Co. v. Balliet
[No. 1900]
HERRINGHALLMARVIN SAFE COMPANY (A Corporation), Appellant, v. LETSON
BALLIET, Respondent.
[145 Pac. 941]
1. Appeal and ErrorReviewVerdict.
The finding of the jury on controverted issues of fact, if supported by substantial evidence, cannot be
disturbed on appeal.
2. SalesActions by SellerEvidenceMutual Rescission.
In an action for the purchase price of a safe which, after being rejected by the buyer, was delivered by
order of the salesman to a firm in which the original buyer was a partner, evidence held sufficient to
warrant the jury in finding that there had been a mutual rescission of the original contract of sale if the
salesman had authority to make such rescission.
3. SalesActions by SellerQuestions for JuryCondition.
Where a written order for the purchase of a safe had a question mark in the place left in the order for the
lettering to be put on the safe, and no designation as to the interior arrangement of the safe, it was a
question of fact whether the order was conditioned, as claimed by the buyer, upon his future determination
as to the lettering and the interior arrangement.
4. EvidenceParol EvidenceIncomplete Contract.
The order was on its face incomplete, so that parol evidence was admissible to supply the missing terms.
5. Principal and AgentExistence of RelationSufficiency of evidence.
In an action for the purchase price of a safe, evidence held sufficient to warrant the jury in finding that the
salesman of the seller had authority to rescind the contract.
6. Principal and AgentExistence of RelationQuestion for Jury.
The existence or nonexistence of an agency is a question of fact for the jury.
7. Principal and AgentExistence of RelationCircumstantial Evidence.
Agency may be shown by circumstances and the course of dealing.
38 Nev. 164, 165 (1914) Herring-Hall-Marvin Safe Co. v. Balliet
8. Appeal and ErrorHarmless ErrorAdmission of EvidenceImmaterial Evidence.
Where the jury found that a contract for the sale of a safe had been mutually rescinded, the seller was not
prejudiced by the admission of evidence as to a warranty that the safe was fireproof.
Appeal from the Fifth Judicial District Court, Nye County; Mark R. Averill, Judge.
Action by the Herring-Hall-Marvin Safe Company against Letson Balliet. Judgment for
defendant, and plaintiff appeals. Affirmed.
McIntosh & Cooke, for Appellant.
P. M. Bowler, for Respondent.
By the Court, McCarran, J.:
This is an action brought by Herring-Hall-Marvin Safe Company, a corporation, against
Letson Balliet, to recover the price of two safes. The complaint alleged two causes of action;
one for the sum of $616, less a set-off of $42.80, for safe No. 187; the other for $469 for safe
No. 194. Respondent by his answer admitted the indebtedness of $616, less $42.80 paid upon
said sum, for safe No. 187, but denied the indebtedness of $469 on safe No. 194, the subject
of the first cause of action. The action proceeded to trial by a jury, upon the right of plaintiff
to recover for safe No. 194.
The record discloses an instrument purporting to be an order, in words and figures as
follows:
Herring-Hall-Marvin Safe Company, 20923
Successor to Hall's Safe and Lock Company,
San Francisco.
Please ship as directed one Number 194 safe of the dimensions and plans of interior as
specified on back of this order, marked to L. Balliet, town of Tonopah, county of Nye, State
of Nevada, via Hazen, for which I agree to pay to your order the sum of (469.00) four
hundred sixty-nine dollars gold coin, rent as follows: Cash on receipt of safe.
38 Nev. 164, 166 (1914) Herring-Hall-Marvin Safe Co. v. Balliet
Freight and delivery charges to be paid by f. o. b. Sacramento.
Cash paid with this contract $ ___
L. Balliet.
Read This Carefully Before Signing.
Approved: N. O. S. Ford, Asst. Mgr.
Order for 194 Safe. 52465.
For L. Balliet.
J. F. Waterhouse, Salesman.
Inside Measure
{ 56 inches high
38 inches wide
18 inches deep
Lettering to be put on safe _____?______
Plan of interior: (When safe is to have regular plan, it is unnecessary to draw any
diagram, but simply say, Plan usual style.)
[Seal of Herring-Hall-Marvin Safe Company.] 1948.
This instrument was signed by respondent, Balliet, on or about November 27, 1906, and
on the same day respondent gave a similar order, a copy of which is also contained in the
record, for safe No. 187, the subject of the second cause of action. Safe No. 187 was received
by respondent pursuant to the order given. On the arrival of safe No. 194 in Tonopah it
appears from the record that notice was sent to respondent, Balliet. Respondent refused to
accept the safe. It is the contention of appellant that order No. 194, when approved by
appellant through its agent, N. O. S. Ford, constituted a complete contract.
Subsequent to the refusal of respondent to accept safe No. 194, respondent entered into a
copartnership with one Murphy, which copartnership was known and designated as
Murphy-Balliet Company, with its headquarters in Tonopah, Nevada. Some time after the
formation of the copartnership the record discloses that safe No. 194 was removed from the
depot of the Tonopah and Goldfield Railroad Company by the Wittenberg Warehouse
Company to the place of business of Murphy-Balliet Company; and it is the contention of
respondent that there was a mutual rescission of the contract established by the terms of order
No.
38 Nev. 164, 167 (1914) Herring-Hall-Marvin Safe Co. v. Balliet
of order No. 194, and that the sale and delivery of the safe to Murphy-Balliet Company was
an independent transaction and a resale by appellant of safe No. 194 to Murphy-Balliet
Company by and through the agent of appellant, J. F. Waterhouse.
At the opening of its case, appellant called respondent, Balliet, to the stand to identify
order No. 194, and also to identify order No. 187. It appears from the testimony of
respondent, Balliet, as we find it in the record, that the safe mentioned in order No. 194 was
not to be shipped to respondent until he should designate the interior plan and cabinet work,
and also direct the lettering that was to be put on the safe. It appears form the testimony of
both respondent, Balliet, and J. F. Waterhouse, who was at least acting in the capacity of
soliciting salesman for appellant, that the order was left blank as to the lettering to be put on
the safe, and that the order contained nothing in the way of designating the cabinet work for
the interior of the safe.
Order No. 194, as it appears in the record, contains a question mark following the words
lettering to be put on safe, and this question mark was the subject of some considerable
testimony in way of explanation during the course of the trial. It also appears from order No.
194, as we find it in the record, that there is an absence of instruction as to interior cabinet
work. The testimony of the soliciting salesman, Waterhouse, is sharply in conflict with the
testimony of respondent, Balliet, as to this phase.
[1] However this may be, if the jury foundas they undoubtedly did findthat the safe
No. 194, designated by plaintiff's Exhibit A, was not to be shipped to the respondent until
he had given instructions as to lettering and as to the interior construction, their finding in this
respect, being, in our judgment, supported by sufficient and substantial evidence, must not be
disturbed.
[2] From the testimony of the witnesses C. F. Wittenberg and J. H. McQuillan, members
of the firm of Wittenberg Warehouse and Transfer Company, on whose premises the safe
remained from the time of its delivery by the Tonopah and Goldfield Railroad Company
until the time at which it was removed to the office of Murphy-Balliet, it is disclosed that
the storage charges on the safe were paid by J. F. Waterhouse, and these charges were
paid by him at the time at which he gave orders to the Wittenberg Warehouse and
Transfer Company to deliver the safe to the office of Murphy-Balliet.
38 Nev. 164, 168 (1914) Herring-Hall-Marvin Safe Co. v. Balliet
premises the safe remained from the time of its delivery by the Tonopah and Goldfield
Railroad Company until the time at which it was removed to the office of Murphy-Balliet, it
is disclosed that the storage charges on the safe were paid by J. F. Waterhouse, and these
charges were paid by him at the time at which he gave orders to the Wittenberg Warehouse
and Transfer Company to deliver the safe to the office of Murphy-Balliet. Moreover, it is
disclosed that the freight charges from Sacramento to Tonopah on safe No. 194 were paid by
the check of Murphy-Balliet.
On the question as to whether or not the contract for safe No. 194 was executory on the
part of respondent, and as to whether or not the same was mutually rescinded and terminated,
the respondent, by way of defense, interposed matters in avoidance, which were questions of
fact for the jury to determine. These questions primarily were as to whether or not certain
lettering, to be placed upon the safe, should be designated before the time of shipment; as to
whether or not interior equipment should be designated before the time of shipment; as to
whether or not the order, signed by respondent, but incomplete as to these features, should be
withheld by the soliciting salesman, and not sent to the main office until the instructions
should be given by the respondent. All of these features were questions of fact to be
determined by the jury; and the condition of order for safe No. 194, with the question mark
contained in the body of the order, and the absence of instructions as to internal equipment,
together with the testimony of the witness McQuillan as to the positive refusal of the
respondent Balliet to receive the safe; and the further fact that the freight charges on the safe
from Sacramento to Tonopah were never paid by the respondent, Balliet, but were paid by the
check of Murphy-Balliet, a co-partnership; and the further fact, disclosed by the testimony of
the witness McQuillan, that the storage charges on the safe were paid by the soliciting
salesman, Waterhouse, into whose hands the incomplete order for safe No. 194 had been
placed by respondentthese matters, disclosed by the record, constituted, in our
judgment, substantial evidence upon which the jury was warranted in finding that there
was a rescission of the contract.
38 Nev. 164, 169 (1914) Herring-Hall-Marvin Safe Co. v. Balliet
by respondentthese matters, disclosed by the record, constituted, in our judgment,
substantial evidence upon which the jury was warranted in finding that there was a rescission
of the contract.
[3] The testimony of the respondent, Balliet, was to the effect that the order for safe No.
194 was a conditional order, and that the terms and conditions were reserved by him for
future determination, and in this respect his testimony is supported by a physical fact; namely,
the order itself, with its contained interrogation mark following the words lettering to be put
on safe, which at least was a circumstance strongly corroborative of the testimony of
respondent, Balliet. As to whether or not the order for safe No. 194 was a conditional order,
was a question of fact upon which the jury were the exclusive judges.
[4] It is the contention of appellant that the court erred in admitting parol evidence with
reference to the terms and conditions of the contract. Appellant's contention in this respect
might be well taken, if the contract did not bear evidence of incompleteness. Here was an
instrument, bearing upon its face a sign which called for an answer or explanation, and which
of itself constituted the very strongest evidence of something lackingsomething to be
supplied by some one before the party who was to assume the obligation of filling the order
could do so. The interrogation mark on the face of the order, and the absence of designation
as to internal equipment, were evidences of incompleteness, and were also evidences of a
something absent, unexplained, and essential to the complete fulfillment of the contract;
hence parol evidence was properly admissible in explanation.
[5] The organization of the copartnership of Murphy-Balliet Company, and its
organization to do business, is not disputed. it cannot be seriously contended, in our
judgment, that the subsequent delivery of the safe by the soliciting salesman, Waterhouse, to
the copartnership of Murphy-Balliet constituted a delivery to respondent.
[6] The existence or nonexistence of an agency is a question of fact for the jury.
38 Nev. 164, 170 (1914) Herring-Hall-Marvin Safe Co. v. Balliet
question of fact for the jury. (Cook v. Smith, et al., 73 Ill. App. 483; Iroquois Furnace Co. v.
Ross, 76 Ill. App. 549.)
[7] Agency need not be proved by direct proof, but may be shown by circumstances and
the course of dealing. (Crosno v. Bowser Milling Co., 106 Mo. App. 236, 80 S. W. 275;
Nutting v. Kings County L. El. Ry. Co., 21 App. Div. 72, 47 N. Y. Supp. 327.)
If the jury found as a fact that Waterhouse did negotiate for a sale of the safe to the
co-partnership of Murphy-Balliet after the refusal of respondent, Balliet, to accept the same,
then this act of itself constituted the very strongest evidence of mutual rescission of the
original contract, if Waterhouse had the authority to enter into such mutual rescission. It is the
contention of appellant that Waterhouse acted in no other capacity than that of soliciting
salesman; but in this respect we deem it sufficient to say that the oath of J. F. Waterhouse,
made in verification of the plaintiff's complaint, together with the affidavit of J. F.
Waterhouse, made pursuant to the issuance of the writ of attachment, was sufficient, in our
judgment, to warrant the jury in believing and finding that J. F. Waterhouse was the duly
authorized and acting agent of plaintiff, and, as such, had sufficient authority to bind his
principal in the mutual rescission. The verification is as follows:
State of Nevada, County of Nye-ss.:
J. F. Waterhouse, being first duly sworn according to law, on his oath deposes and says:
That he is the duly authorized and acting agent of the plaintiff above named, and makes this
verification for and on behalf of plaintiff and for its use and benefit, and for the reason that
affiant is more familiar with the facts above stated than any other agent or officer of plaintiff;
that affiant has heard read the foregoing complaint and knows the contents thereof; that the
same are true of his own knowledge, except as to those matters therein stated to be on
information or belief, and as to those matters be believes it to be true.
J. F. Waterhouse.
38 Nev. 164, 171 (1914) Herring-Hall-Marvin Safe Co. v. Balliet
Subscribed and sworn to before me this 8th day of June, 1908.
H. R. Cooke, Notary Public.
Another matter of evidence, which would have warranted the jury in finding that
Waterhouse had authorization to bind his principal, was the fact that on the original order for
safe No. 194 certain printed matter, bearing upon the right of the salesman or representative
of appellant to change the terms and conditions of the order, were, by act of Waterhouse
himself, as admitted by him in his testimony, stricken out with indelible lead pencil; and this
order, with such portions stricken out, was received by N. O. S. Ford, assistant manager of
appellant corporation, at its offices in San Francisco, and was by the said Ford approved, as
appears from the instrument itself, and also from the testimony of the witness Giesting. The
approval on the part of the assistant manager of the appellant corporation of the acts of
Waterhouse in striking from the contract certain salient features thereof was, to say the least,
strongly indicative of a wide scope of authority conferred on Waterhouse by the appellant
company. If Waterhouse, acting as soliciting salesman for the appellant company, had
authority to strike from the uniform contract, authorized by the appellant company, certain
features which of themselves had a more or less salient effect upon the transaction, then, in
our judgment, the jury was warranted in finding that the authority conferred by appellant upon
its soliciting salesman was sufficient in scope to bind appellant by the acts of Waterhouse in a
rescission of the contract, if it found that Waterhouse agreed to a rescission when the safe
arrived at Tonopah and was refused by respondent, Balliet. (Clarke v. Lyon County, 8 Nev.
188; Ellis v. Central Pacific Railroad Co., 5 Nev. 256; Rankin v. New England and Nevada
Silver Mining Co., 4 Nev. 78.)
If the jury found, as it undoubtedly did find by its general verdict in favor of respondent, that
as to order for safe No. 194 there was a mutual rescission of the contract, and also found that
subsequent to such mutual rescission there was a resale of the safe to Murphy-Balliet,
there being, in our judgment, substantial evidence to support its findings in this respect,
the same should not be disturbed.
38 Nev. 164, 172 (1914) Herring-Hall-Marvin Safe Co. v. Balliet
rescission there was a resale of the safe to Murphy-Balliet, there being, in our judgment,
substantial evidence to support its findings in this respect, the same should not be disturbed.
In this case the briefs of appellant and respondent touch upon many side issues which, in
our judgement, have no bearing upon the principal issue in the case, and hence will not be
discussed.
[8] It is the contention of appellant that the court erred in admitting evidence as to an
alleged fireproof warranty, alleged to have been given by Waterhouse to Murphy-Balliet. We
deem it unnecessary to pass upon this matter, inasmuch as, it the same was error, it was
harmless error, and the rights of appelant were not materially affected thereby. The question
as to the fireproof character of the safe, or as to any warranty given with reference thereto, has
nothing to do with the main issue in the case.
The judgment of the lower court and the order denying a new trial are affirmed.
It is so ordered.
____________
38 Nev. 173, 173 (1915)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA
____________
January Term, 1915
____________
38 Nev. 173, 173 (1915) State v. Pierpoint
[No. 2149]
STATE OF NEVADA, Respondent, v. JOE PIERPOINT, Appellant.
[147 Pac. 214]
1. RapeAttempt to CommitIndictment.
Under Rev. Laws, sec 6291, providing that an act done with intent to commit a crime, and tending, but
failing, to accomplish it, is an attempt to commit that crime, and section 6442, declaring that carnal
knowledge of a female child under 16 is rape, an indictment alleging that the accused attempted to
carnally know a female child of 13 by procuring her to get in bed with him and soliciting her to have
intercourse with him with intent to rape is sufficient to charge at attempt to rape.
Appeal from the Seventh Judicial District Court, Esmeralda County; Peter J. Somers,
Judge.
Joe Pierpoint was convicted of crime, and he appeals. Affirmed.
Francis McNulty, for Appellant:
The indictment charges no specific act constituting an attempt. It amounts only to a charge of
solicitation, and, hence, is insufficient. (State v. Lung, 21 Nev. 214.)
Geo. B. Thatcher, Attorney-General, and M. A. Diskin, District Attorney, for Respondent.
38 Nev. 173, 174 (1915) State v. Pierpoint
By the Court, Norcross, C. J.:
Appellant was convicted of the crime of attempt to commit rape, and from the judgment
appeals.
Two questions are presented in the brief of appellant, and they involve the sufficiency of
the indictment to charge the offense and the sufficiency of the evidence to justify the verdict.
The charging part of the indictment reads:
The said defendant, Joe Pierpont, * * * being then and there a person over the age of 16
years, to wit, of the age of 23 years, did then and there unlawfully and feloniously attempt to
carnally know upon the person of ________, a female child under the age of 16 years, to wit,
of the age of 13, by procuring her to get in bed with him, the said defendant, and soliciting
her to have intercourse with him, all with the felonious intent then and there to rape, etc.
Without here reviewing the evidence, we deem it sufficient to say that we have examined
the transcript of the testimony, and that the charges contained in the indictment are amply
supported by the testimony. It remains only to determine the sufficiency of the indictment.
Carnal knowledge of a female child under the age of 16 years, with or without her consent,
by a male person over the age of 16 years, constitutes rape. (Rev. Laws, sec. 6442.)
An act done with intent to commit a crime, and tending but failing to accomplish it, is an
attempt to commit that crime. (Rev. Laws, sec. 6291.)
Cyc., treating of the law of attempt to commit rape, says:
To constitute an attempt to rape, there must be something more than mere preparation;
there must be some overt act with intent to commit the crime, coupled with an actual or
apparent present ability to complete the crime. Mere indecent advances, solicitations, or
importunities do not amount to an attempt. (33 Cyc. 1431.)
Conceding, for the purposes of this case, that the rule that mere indecent advances,
solicitations, or importunities applies in cases where the female child is below the age of
consent, nevertheless we are of the opinion that the indictment in this case sufficiently
charges an overt act, to wit, procuring the child to get in bed with the defendant, which,
together with the solicitation, is sufficient to constitute a sufficient charge under the
statute.
38 Nev. 173, 175 (1915) State v. Pierpoint
age of consent, nevertheless we are of the opinion that the indictment in this case sufficiently
charges an overt act, to wit, procuring the child to get in bed with the defendant, which,
together with the solicitation, is sufficient to constitute a sufficient charge under the statute.
(Glover v. Com., 86 Va. 382, 10 S. E. 420.)
In the recent case of State v. Nelson, 36 Nev. 403, 136 Pac. 377, we sustained a conviction
of an assault with intent to commit rape upon a female child under the age of consent upon
evidence of facts far less conclusive than the facts charged in this indictment.
Judgment affirmed.
____________
38 Nev. 175, 175 (1915) Boydstun v. Jacobs
[No. 2100]
SYLVIA BOYDSTUN, Appellant, v. PHILIP JACOBS and NEWTON JACOBS
(A Minor), Respondents.
[147 Pac. 447]
1. Existence of TrustTermination or Repudiation of Trust.
While it is not competent for a trustee to assert a legal title by adverse possession or to plead limitations
against a cestui que trust, when the trusteeship is terminated, or when the trustee denies the trust and asserts
ownership of the trust property in such a manner that the cestui que trust has actual or constructive notice
of the repudiation of the trust, the statute attaches and runs from that time.
2. Limitation of ActionsExistence of TrustTermination or Repudiation of Trust.
Where plaintiff, after accepting a deed from a trustee not including land to which she claimed she was
entitled under the terms of the trust, never received or demanded the rents and profits of such real estate,
and the trustee collected and retained them without any question as to his right to do so being raised for
about nine years, she could not deny that the position taken by the trustee was an assertion of an adverse
title to the property.
3. Limitation of ActionsExistence of TrustTermination or Repudiation of Trust.
Where an act is done by a trustee which purports to be an execution of a trust, he is thenceforth regarded
as standing at arm's length from the cestui que trust, who must assert his claim at the hazard of being barred
by limitations.
38 Nev. 175, 176 (1915) Boydstun v. Jacobs
4. Limitation of ActionsExistence of TrustTermination or Repudiation of Trust.
Where though plaintiff, at the time she accepted a deed from a trustee which did not include land to
which she believed herself entitled under the terms of the trust, was the trustee's wife, she procured a
divorce about one year later, she could not thereafter assert that she was under the trustee's influence to
defeat his claim of title by adverse possession.
5. PleadingIssuesMatters to be ProvedAdmissions.
Where, in an action to recover real property, the answer alleging title by adverse possession was verified
and alleged payment of taxes by defendant, and such allegation was not denied by the replication, no
evidence on this point was necessary.
6. Appeal and ErrorHarmless ErrorAdmission of Evidence.
A judgment will not be reversed because of the admission of incompetent evidence which was afterwards
stricken out and which did not prejudice appellant.
Appeal from Second Judicial District Court, Washoe County; Cole L. Harwood, Judge.
Suit by Sylvia Boydstun against Philip Jacobs and another. Judgment for defendant, and
plaintiff appeals. Affirmed.
James Glynn and O. J. Smith, for Appellant.
Summerfield & Richards, for Respondents.
By the Court, Coleman, J.:
This is a suit brought by appellant to recover possession of certain real property.
Mrs. Dora B. Lachman, on July 8, 1901, conveyed to Philip Jacobs, as trustee, the
following property, namely:
Lots eleven (11) and twelve (12) in block E in Powning's addition to Reno; lot four (4) in
block T, with the dwelling house of grantor and another house of one story thereon; south
one-half (1/2) of lot four (4) and north one-half (1/2) of lot three in block O, with the three
stores situated thereon; also the south one-half (1/2) of lot five (5) in block O, with the
laundry building thereon; also an undivided interest in the following property, lot nineteen
(19) and west nineteen (19) feet of lot twenty {20) in block O with stores; also S.
38 Nev. 175, 177 (1915) Boydstun v. Jacobs
twenty (20) in block O with stores; also S. 20 ft. of lots 23 and 24 in block O.
The habendum clause of the deed reads as follows:
To have and to hold, all and singular the said premises, together with the appurtenances,
unto the said party of the second part, his heirs and assigns forever in trust nevertheless for
the following uses and purposes namely, to hold the same during the term of my natural life
paying over to me during my life all the rents, issues and profits thereof and upon my death
said properties shall go to and my said trustee Philip Jacobs shall convey the same (if the law
shall require any conveyance) to the following persons, viz, to the child or children of my
daughter Sylvia the south one-half (1/2) of block O. If at the time of my death my said
daughter shall have no other child than her present issue Newton Nevada Jacobs said S. 1/2 of
block O shall go to said Newton. If she shall have more than one child it shall go to her
children in equal shares. If she shall have no issue living said property (S. 1/2 of block O)
shall go to my said daughter.
Mrs. Lachman died on July 27, 1901. The appellant in 1896 was married to respondent
Philip Jacobs, to whom was born respondent Newton Nevada Jacobs. Appellant and
respondent Philip Jacobs lived happily together until March, 1904, when they separated, and
were divorced in September, 1904. On July 13, 1903, appellant demanded of Philip Jacobs a
conveyance of all the property to which she was entitled under the deed of trust. On that day,
and prior to the execution of the deed, she had three conversations with said trustee, in each
of which the question as to what property she was entitled to under the trust deed was
discussed. She was informed by said trustee, and by his father, with whom she also had a
conversation on that day, that the property in question here, which will hereafter be
designated as the Lachman Building, went to her son, Newton Jacobs, and that she received
the rent of the property described in the trust deed.
Appellant now contends that it was the intention of her mother that she should have
received the Lachman building, and that Newton Jacobs should have received the south
one-half of lot 5.
38 Nev. 175, 178 (1915) Boydstun v. Jacobs
her mother that she should have received the Lachman building, and that Newton Jacobs
should have received the south one-half of lot 5. She charges that through the fraudulent
misrepresentations of her husband she was induced to accept a conveyance to the property
which was transferred to her, instead of the Lachman building.
Respondents denied the charge of fraud, and also denied that it was the intention of Mrs.
Lachman that appellant should receive the Lachman building under the terms of the trust
deed, and pleaded affirmatively adverse possession.
The trial court in its findings determined no other question than that set up in the
affirmative defense, which it held to have been established.
[1] It is contended by appellant on this appeal that it is not competent for a trustee to assert
a legal title by adverse possession or plead the statute of limitations against a cestui que trust.
The doctrine contended for by appellant is unquestionably correct; but when the trusteeship is
terminated, or when the trustee denies the trust and asserts ownership of the trust property in
such a manner that the cestui que trust has actual or constructive notice of the repudiation of
the trust, the statute attaches and begins to run from that time.
The possession of a trustee is the possession of the cestui que trust, so long as the trust is
acknowledged; but from the time of known disavowal it becomes adverse. (Willison v.
Watkins, 3 Pet. 52, 7 L. Ed. 596; Boone v. Chiles, 10 Pet. 223, 9 L. Ed. 388.)
Conceding what is contended for by the counsel for plaintiff that the statute of limitations
does not run against an express trust, it must be borne in mind that this rule is subject to the
qualification that when the trust is repudiated by clear and unequivocal words and acts of the
trustee who claims to hold the trust property as his own, and such repudiation and claim are
brought to the notice of the beneficiary in such a manner that he is called upon to assert his
equitable rights, the statute of limitations will begin to run from the time such repudiation
and claim came to the knowledge of the beneficiary."
38 Nev. 175, 179 (1915) Boydstun v. Jacobs
and claim came to the knowledge of the beneficiary. (Philippi v. Philippi, 115 U. S. 157, 5
Sup. Ct. 1181, 29 L. Ed. 336.)
But as between trustee and cestui que trust, in the case of an express trust, the statute of
limitations does not begin to run until the trustee repudiates the trust by clear and unequivocal
acts or words, and claims thenceforth to hold the estate as his own, not subject to any trust,
and such repudiation and claim are brought to the knowledge of the cestui que trust. (Hearst
v. Pujol, 44 Cal. 235.)
Time begins to run against a trust only from the time when it is openly disavowed by the
trustee, who insists upon adverse right and interest, which is fully and unequivocally made
known to the cestui que trust. (Janes v. Throckmorton, 57 Cal. 388.)
Time does not begin to run until the trust is disavowed and the disavowal is made known
to the cestui que trust. (Haskell v. Hervey, 74 Me. 197.)
It is well settled that even in cases of express technical trusts, where the trustee does an
act expressive of an intention to repudiate the trust, the knowledge of which is brought home
to the cestui que trust, the statute will commence to run from that time. (Boyd v. Munro, 32
S. C. 249, 10 S. E. 963.)
Without any authority to the purpose, I am of opinion, from the reason and analogy of the
law, that when a trustee does an act, which purports to be a final execution of his trust, the
statute will begin to run from that time.From the opinion of the trial judge quoted in
Moore v. Porcher, 1 Bailey, Eq. 197. (Robinson v. Dunn, 87 N. C. 191; Helm v. Rogers, 81
Ky. 568; McCallam v. Carswell, 75 Ga. 28; University v. Bank, 96 N. C. 287, 3 S. E. 359; 2
Perry on Trusts and Trustees, 6th ed. sec. 864; Wood on Limitations, 3d. ed. sec. 200, p. 464;
Felkner v. Dooly, 28 Utah, 236, 78 Pac. 366, 3 Ann. Cas. 199; 39 Cyc. 603; 28 Am. & Eng.
Ency. Law, 2d ed. p. 1134.)
[2] Appellant knew full well that at the time she accepted the deed on July 13, 1903, the
trustee contended that she had no interest in the property in question, but that it was the
property of Newton Nevada Jacobs.
38 Nev. 175, 180 (1915) Boydstun v. Jacobs
that it was the property of Newton Nevada Jacobs. At no time after accepting the deed
mentioned did she receive or demand the rents and profits of the Lachman building. The
trustee collected and retained them, and no question as to his right to do so was raised for
about nine years. After all this time she cannot be heard to say that she did not understand the
trustee's position, and that it was not clearly an assertion of an adverse title to the property in
question. In our opinion, the findings of fact and conclusions of law made by the lower court
were justified.
[3] Where an act is done by a trustee which purports to be an execution of a trust, he is
thenceforth to be regarded as standing at arm's length from the cestui que trust, who is put to
the assertion of his claim at the hazard of being barred by the statute. (Coleman v. Davis. 2
Strob. Eq. 334.)
[4] It is urged by the appellant that because of the marriage relationship which existed
between her and the trustee at the time she received the deed from him, and of the confidence
growing out of that relationship, she was misled and deceived by him into accepting the deed
in question, and that by virtue of the misrepresentations she was defrauded. The fact is that in
September, 1904, that relationship ceased. Having ceased, and being in possession of all the
facts, she could no longer assert that she was under the trustee's influence.
[5] It is contended by the appellant that there was no evidence introduced at the trial to
sustain the finding of payment of taxes by appellee, Philip Jacobs. The answer, which was
verified, alleged payment of taxes, and this allegation was not denied by the replication.
Consequently it was not necessary to offer evidence on the point.
[6] It is urged by the appellant that the trial court committed reversible error by receiving,
subject to objection, incompetent evidence. The evidence was afterward stricken out by the
court and was not taken into consideration in arriving at a judgment. Appellant was in no way
prejudiced, and the case should not be reversed because of the admission of the evidence.
38 Nev. 175, 181 (1915) Boydstun v. Jacobs
because of the admission of the evidence. (Rehling v. Brainard, 38 Nev. 16, 144 Pac. 169.)
Entertaining the views we do, it follows that the judgment of the lower court should be
affirmed.
It is so ordered.
____________
38 Nev. 181, 181 (1915) State v. Clancy
[No. 2151]
STATE OF NEVADA, Respondent v. JOHN CLANCY,
Appellant.
[147 Pac. 449]
1. Criminal LawInsanityBurden of ProofInstructions.
Instructions that the law presumes every man sane until the contrary is shown by evidence, and that
before accused can be excused on the ground of insanity the jury must find that he was without sufficient
reason to know what he was doing, or that as a result of mental unsoundness he had not sufficient will
power to govern his action, and that as the law presumes a man to be sane until the contrary is shown, the
burden of proving insanity is on the accused to establish by preponderance of the evidence, and if the jury
believe beyond a reasonable doubt that accused at the time of committing the act could distinguish right
from wrong, he cannot be acquitted on the ground of insanity, are sufficiently favorable to accused.
2. Criminal LawTrialMisconduct of Prosecuting AttorneyInstructions.
Misconduct of the district attorney in attempting to bring before the jury the fact that accused on trial for
a felony had been convicted of a misdemeanor, was not reversible error, where the court directed the jury
to disregard any evidence on that subject.
3. Criminal LawTrialMisconduct of Prosecuting AttorneyInstructions.
The argument of the district attorney in commenting on the defense of insanity that, if jurors are going to
acquit men on such statements as made by accused, the courts may as well be dissolved, though improper,
does not require a reversal, where the court charged that the jury are the sole judges of the credibility of the
witnesses and of the weight to be given to their testimony.
Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.
38 Nev. 181, 182 (1915) State v. Clancy
John Clancy was convicted of robbery, and he appeals. Affirmed.
Fred B. Hart, for Appellant.
Geo. B. Thatcher, Attorney-General, for Respondent.
By the Court, Norcross, C. J.:
Appellant was convicted of robbery in the Second judicial district court in and for the
county of Washoe, and he appeals.
[1] At the trial the defendant interposed the defense of insanity and assigns error in the
giving of the following instructions:
You are instructed that the law presumes every man sane until the contrary is shown by
the evidence, and before the defendant can be excused on the ground of insanity the jury must
believe from the evidence that the defendant at the time of the commission of the crime was
without sufficient reason to know what he was doing, or that, as the result of mental
unsoundness, he had not sufficient will power to govern his action by reason of some insane
impulse which he could not resist or control. You are instructed that every man is presumed
to be sane and to intend the natural and usual consequences of his own acts. As the law
presumes a man to be sane until the contrary is shown, I charge you that the burden of
proving insanity as a defense to a crime is upon the defendant to establish by a preponderance
of the evidence, and unless insanity is established by a preponderance of the evidence the
presumption of sanity should prevail.
In addition to the foregoing instructions and in addition to an instruction upon the law of
insanity given at the request of the defendant, the following instruction was given:
If you believe from the evidence, beyond a reasonable doubt, that at the time of doing the
alleged act, the defendant was able to distinguish right from wrong, then you cannot acquit
him on the ground of insanity.
38 Nev. 181, 183 (1915) State v. Clancy
It is contended by counsel for appellant that the court erred in instructing the jury to the
effect that the burden of proving insanity as a defense was upon the defendant, and that the
presumption of innocence should prevail unless such defense was established by a
preponderance of the evidence.
We think no good purposes can be served at this time by again considering the divergent
rules prevailing in various jurisdictions as to the degree of proof required of a defendant
where the defense of insanity is interposed. The question was adverted to at some length in
the recent case of State v. Nelson, 36 Nev. 403. In that case, after considering the rule stated
in State v. Lewis, 20 Nev. 334, we said: We see no good reason at this time for changing the
rule. The instructions complained of are supported by the decisions of this court in the Lewis
and Nelson cases.
The instruction last quoted, supra, virtually directed the jury to give the defendant the
benefit of the doubt upon the issue of sanity and was more favorable to the defendant than the
rule announced in the Lewis case warrants.
[2] Upon cross-examination, the defendant was asked, without objection, where he was
and what he had been doing during a considerable period of time that he had testified he was
residing within the state. He was finally asked where he was during the months from October
to February, to which objection was interposed and overruled. He answered: I was locked
up, sir, for drinking with an Indian. A motion to strike the question and answer was denied,
to which exception was taken, and the conduct of the district attorney assigned as error.
The defendant was then asked if he had ever been convicted of any crime, to which he
replied, I never was, sir.
Defendant was then asked if he had not been convicted in the federal court at Carson City
of the crime of selling liquor to an Indian and sentenced to the county jail. Objection to this
question was sustained, as was also an objection to an attempt by the district attorney to
prove such conviction by record evidence.
38 Nev. 181, 184 (1915) State v. Clancy
objection to an attempt by the district attorney to prove such conviction by record evidence.
Subsequently the jury was instructed to disregard any evidence offered and objected to,
wherein the objection to its introduction was sustained.
It was unquestionably improper for the district attorney to attempt to bring to the attention
of the jury the fact, if it be a fact, of defendant's conviction of a misdemeanor; but we think,
in view of the ruling and instructions of the court, that the impropriety of attempting to get
such fact before the jury was not so gross as to constitute reversible error.
[3] In commenting upon the testimony of the defendant relative to his alleged insanity at
the time of the commission of the offense, the district attorney said: I say, if jurors in this
country are going to acquit men on such statements as that, then our courts may as well be
dissolved. This statement is assigned as errorconstituting misconduct upon the part of the
district attorney.
The remarks of the district attorney complained of, while subject to criticism, do not, we
think, amount to such misconduct as to justify a reversal in this case. A good deal of latitude
is allowed counsel upon both sides in the presentation of their arguments to the jury. Probably
in the great majority of cases counsel upon one or both sides overstep the bounds of
legitimate argument, and it must be conceded that it too frequently happens that prosecuting
attorneys so far forget their duty to the defendant as to compel reversals of cases in the
interest of substantial justice. Nevertheless, some allowance must be made for the intelligence
of jurors not to be misled by the misguided zeal of counsel. The jurymen in this case were
instructed that they were the sole judges of the credibility of the witnesses and of the weight
to be given to their testimony, and we must assume that they gave heed to this instruction. In
any case, whether remarks of the prosecuting attorney in argument amount to reversible error,
depends somewhat upon the whole record in the case. This point is well illustrated by the
recent decision of the Court of Appeals of California in People v. Hail, 143 Pac.
38 Nev. 181, 185 (1915) State v. Clancy
of the Court of Appeals of California in People v. Hail, 143 Pac. 803.
In the recent case of State v. Scott, 37 Nev. 412, 142 Pac. 1053, 1060, we took occasion to
comment upon the legitimate province of prosecuting attorneys in criminal cases, and we
conclude this branch of the case by commending the remarks of the court in that case to the
careful perusal of prosecuting attorneys.
A number of other assignments of error are discussed in the briefs, but we think it
unnecessary to determine them, for, if conceded to be error, they would not justify a reversal
of the case. Upon the material facts, outside of the question of defendant's sanity, the
evidence is not conflicting. The other alleged errors could not materially affect defendant's
defense of insanity.
The judgment is affirmed.
____________
38 Nev. 185, 185 (1915) Grant v. Grant
[No. 2154]
JESSE R. GRANT, Appellant, v. ELIZABETH
CHAPMAN GRANT, Respondent.
[147 Pac. 451]
1. CourtsEstoppel to Deny JurisdictionWaiver of Objection.
Where complainant, in a suit for divorce, averred under oath that he had resided within the county long
enough to give the court jurisdiction, after judgment for defendant he could not have an order setting it
aside without prejudice on the ground that he had not in fact been a resident of the county for the
jurisdictional period; he having waived objection to jurisdiction of his person.
Appeal from the Seventh Judicial District Court, Esmeralda County, Peter J. Somers,
Judge.
Suit for divorce by Jesse R. Grant against Elizabeth Chapman Grant. Judgment for
defendant, and, from denial of complainant's motion to set aside such judgment and for an
order dismissing the proceedings without prejudice, he appeals. Affirmed.
M. B. Moore, for Appellant.
Hoyt, Gibbons & French, for Respondent.
38 Nev. 185, 186 (1915) Grant v. Grant
By the Court, McCarran, J.:
Appellant herein was plaintiff in the court below in an action in which he sued for a decree
of absolute divorce from respondent herein.
It appears from the record that appellant, plaintiff in the court below, filed his complaint
on the 23d day or July, 1913, and caused the issuance of summons upon the same day. On the
24th of July, 1913, pursuant to affidavit made by appellant, the court made an order directing
the service of summons by publication. Respondent herein, defendant in the court below,
appeared and filed an answer to appellant's complaint. Issue being joined, the case went to
trial on the 27th day of March, 1914. Judgment was entered by the trial court for the
defendant, respondent herein.
Appellant's complaint, filed in the court below, and upon which said complaint summons
was issued, set forth certain specific allegations, first, as to marriage, and, second, as to
residence; his allegation as to the latter being as follows: That the plaintiff is and has been a
resident of the county of Esmeralda, and State of Nevada, for six months immediately
preceding the commencement of this action.
On entering of judgment in this case, the trial court filed its findings of fact, in which,
among other things, the court found: That the plaintiff is, and has been for six months
immediately preceding the commencement of this action, a resident of the county of
Esmeralda, State of Nevada.
Subsequent to the entry of judgment in this case, appellant moved the trial court for an
order setting aside the judgment entered in favor of the defendant and for an order dismissing
the entire proceedings without prejudice. The motion was made upon the ground that the
court was without jurisdiction, inasmuch as the testimony adduced at the trial disclosed that
the plaintiff was not a resident of Esmeralda County, the county in which the cause was tried,
for a period of six months prior to the commencement of the action. This appeal is taken
from the order of the trial court denying appellant's motion in that respect.
38 Nev. 185, 187 (1915) Grant v. Grant
is taken from the order of the trial court denying appellant's motion in that respect.
We deem it unnecessary to dwell at length on the evidence presented to the trial court,
bearing upon the period of residence of appellant. Suffice it to say that appellant herein
testified on that occasion that he resided in the Goldfield Hotel, in the town of Goldfield,
almost continuously from the 24th day of January, 1913.
Both parties to this action submitted to the jurisdiction of the court without question until
after judgment had been entered, and then, for the first time, the plaintiff (he who in the first
instance invoked the power of the court, and expressly declared himself within its
jurisdiction) sought to challenge that jurisdiction, and thereby sought to have the court set
aside a judgment entered against him, by his assuming a contrary position to that taken on the
trial.
By appellant's express averment under oath, declaring that he had resided within
Esmeralda County sufficient length of time to give the court jurisdiction, he thereby declared
that the court had jurisdiction, and expressly invoked the power of the court to determine the
merits of the controversy between himself and defendant. He thereby invoked the power of
the court, whose jurisdiction he not only did not deny but expressly declared, to determine all
matters alleged as facts in his complaint; and one of the matters alleged as a fact under oath in
his complaint was the duration of his own residence.
In the case at bar, the trial court undoubtedly had jurisdiction over the subject-matter of the
action. It was within the power of the trial court to determine jurisdictional facts, as much as
it was within its power to determine any other facts involved in the controversy. The
pleadings, on their face, expressly declared those facts essential to confer jurisdiction upon
the trial court; and this entire matter might be determined in the one assertion that the trial
court having heard evidence offered by the plaintiff as to jurisdictional facts, and having
determined from that evidence that the plaintiff had resided a sufficient length of time
within Esmeralda County to bring himself within the jurisdiction of the court for the
purposes sought, the court's determination and finding in that respect cannot be
questioned by this means, in view of the fact that the court had general jurisdiction over
the subject-matter of the action.
38 Nev. 185, 188 (1915) Grant v. Grant
resided a sufficient length of time within Esmeralda County to bring himself within the
jurisdiction of the court for the purposes sought, the court's determination and finding in that
respect cannot be questioned by this means, in view of the fact that the court had general
jurisdiction over the subject-matter of the action.
While the general rule is that jurisdiction over the subject-matter of an action cannot be
conferred on a court by consent, it has been held that want of that jurisdiction over the person
may be waived.
In this case the trial court had jurisdiction over the subject-matter. The plaintiff, by his
verified complaint, declared the jurisdiction of the court over his person, and, pursuant to the
declarations of his complaint and his prayer for affirmative relief, the court placed its
processes at his disposal. The defendant having come into court and submitted herself to its
jurisdiction, and the entire matter having been submitted to the court without questioning the
jurisdiction, the plaintiff is estopped from questioning the jurisdiction of that court whose
power and processes he invoked to secure the end which he sought, namely, dissolution of the
bonds of matrimony. He cannot now be heard to challenge the court's jurisdiction, after a
judgment has been rendered contrary to his prayer, which, if rendered in his favor, he would
unquestionably have sought to enforce. The expression of other courts on this subject may be
found in the following cases: In re Lipman (D. C.) 201 Fed. 169; Phelps v. Norman, et al.
(Tex. Civ. App.) 55 S. W. 978; In Re Spring Street, 112 Pa. 258, 3 Atl. 581; Brown v. Woody,
Admr., 64 Mo. 547; Montgomery v. Heilman, 96 Pa. 44; Dufossat v. Berens, et al., 18 La.
Ann. 539.
In the case of Gamble v. Silver Peak, 35 Nev. 319, 133 Pac. 936, this court held that
although, as a general rule, a jurisdictional question may be raised at any time, however, a
party by his conduct may become estopped to raise such a question.
The plaintiff in the court below, appellant herein, not only consented to the jurisdiction
of the trial court, but invoked that jurisdiction and allowed the matter to proceed to final
judgment, by which final judgment, had it been in his favor, he would have bound the
defendant; but, the judgment being in favor of the defendant, the plaintiff, who invoked
the jurisdiction of the court in the first instance, cannot now be heard to question that
jurisdiction.
38 Nev. 185, 189 (1915) Grant v. Grant
only consented to the jurisdiction of the trial court, but invoked that jurisdiction and allowed
the matter to proceed to final judgment, by which final judgment, had it been in his favor, he
would have bound the defendant; but, the judgment being in favor of the defendant, the
plaintiff, who invoked the jurisdiction of the court in the first instance, cannot now be heard
to question that jurisdiction.
It follows that the order of the lower court, in refusing to set aside the judgment and in
denying the motion of appellant in that respect, should be affirmed.
It is so ordered.
____________
38 Nev. 191, 191 (1915)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA
____________
APRIL TERM, 1915
____________
38 Nev. 191, 191 (1915) Albee v. Albee
[No. 2163]
SHERMAN R. ALBEE, Appellant, v. KATE ALBEE,
Respondent.
[147 Pac. 452]
1. DivorceGroundsDesertionConsent.
Separation by consent of the parties is not desertion, and will not be ground for divorce.
2. Appeal and ErrorReviewFindings of CourtConclusiveness.
A judgment based on substantially conflicting testimony will not be disturbed on appeal.
Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.
Action for divorce by Sherman R. Albee against Kate Albee. From a judgment denying
relief, plaintiff appeals. Affirmed.
Harwood & Springmeyer, for Appellant.
Eugene L. Williams, for Respondent.
By the Court, McCarran, J.:
Appellant herein commenced his suit in the district court of Washoe County, in which said
action he prayed for an absolute decree of divorce against defendant, upon the ground of
desertion. Service was had upon the defendant in a foreign state, and in due time answer was
filed by the defendant, respondent herein, denying the allegations of plaintiff's complaint,
but making no demand for affirmative relief, save and except counsel fees and alimony
pendente lite.
38 Nev. 191, 192 (1915) Albee v. Albee
was filed by the defendant, respondent herein, denying the allegations of plaintiff's complaint,
but making no demand for affirmative relief, save and except counsel fees and alimony
pendente lite. On the trial of the cause, the defendant, appearing in person and by her
attorney, testified in her own behalf and in support of her answer. At the conclusion of the
trial, the court below found that both parties to the proceedings were equally to blame; and
that the plaintiff had failed to prove willful desertion. From the judgment of the lower court
and order denying a new trial, appeal is taken to this court, upon the sole ground that the
judgment is contrary to the evidence and against law. No errors of law committed by the trial
court during the proceedings are assigned, and we are confronted with the sole question as to
whether or not the trial court was warranted in rendering its decision, as it was rendered, upon
the evidence as presented to it on the trial.
The testimony of appellant, plaintiff in the court below, was to the effect that for some
eight years respondent had refused to cohabit with him and had denied him conjugal rights,
and that, although living in the same house, she willfully and persistently occupied a separate
apartment, and that these acts on her part were against his will, wish, and consent. He further
testified that during the month of April, 1912, the defendant, in an angry mood, said to him
that it was time that they settled up, and for him to get out of there; and that pursuant to this
declaration on the part of his wife he left the home and, later coming to Nevada, took up a
residence here for the statutory time required and commenced action for divorce. The record
also discloses that at another time, subsequent to his departure and prior to his coming to
Nevada, he commenced an action for divorce in the courts of the state in which he and the
respondent had lived, the result of which said action is not disclosed by the record.
The testimony of respondent is in direct contradiction to that of appellant with reference to
the acts of desertion. Respondent's testimony is to the effect that she was the mother of three
children, one of whom, a boy of 19 years, is living.
38 Nev. 191, 193 (1915) Albee v. Albee
was the mother of three children, one of whom, a boy of 19 years, is living. She, in her
testimony, makes explanation for the fact of their occupying separate beds and separate
apartments, at the same time denying that she had ever refused appellant his conjugal rights.
Her testimony as to the event of his departure is to the effect that she begged him not to leave
her, and at the same time drew his attention to the effect of separation upon herself and their
boy.
There is some testimony in the record, on the part of appellant, as to the acts and conduct
of respondent in nursing a neighbor and thereby neglecting her duties at home. Explanation of
this is made by respondent in her testimony, in which she says that the neighbor was a close
friend of both herself and her husband, and that she acted in the capacity of nurse at the
suggestion and with the consent of her husband.
It is scarcely necessary for us to dwell upon those fundamental rules, prescribed by law,
which must be observed by the courts in determining the question of desertion in cases of this
kind.
[1] It has been held that, if the husband whose wife has left him fails to express to her in
some way his desire that she return and resume marital relations, her continued absence is not
deemed an act of desertion sufficient to entitle him to a divorce. Other courts have held, in
this respect, however, that, if the complaining party is free from blame, he is not required to
resort to efforts calculated to effect a reconciliation. But the general rule in cases of this kind
is that a separation by consent of the parties will not constitute desertion.
[2] In the case at bar, both the parties to the action appeared before the trial court and
testified, one seeking a decree of divorce, the other declaring that she desired no divorce and
avowing her wish to resume marital relations with her husband. The trial court had the
opportunity of observing the conduct of the parties, of listening to their testimony in the first
instance. The matters testified to by the plaintiff in the court below, which were vital to the
substantiation of his charge of desertion, were flatly contradicted and denied by the
defendant.
38 Nev. 191, 194 (1915) Albee v. Albee
the substantiation of his charge of desertion, were flatly contradicted and denied by the
defendant.
The rule which has been almost universally adopted by appellate courts, to the effect that
where there is a substantial conflict in the testimony the judgment of the trial court will not be
disturbed, we deem especially applicable to the case at bar. But even if there were no such
rule as we refer to, a review of the record leads us to believe that the findings of the trial court
and the judgment entered accordingly were in keeping with the evidence adduced before that
court.
Wherefore it is ordered that the judgment of the trial court, and the order denying motion
for a new trial, be affirmed.
____________
38 Nev. 194, 194 (1915) In Re Hironymous
[No. 2167]
In The Matter of the Application of WESLEY HIRONYMOUS
For a Writ of Habeas Corpus.
[147 Pac. 453]
1. Criminal LawFormer JeopardyDismissal of Indictment.
Under Rev. Laws, sec. 7101, providing that if a demurrer to an indictment 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 directs the case to be submitted to the same or another grand jury; section 7090 providing that an
indictment must be set aside by the court upon defendant's motion in the cases therein specified; section
7092 providing that if such a motion is granted the court must order that the defendant be discharged, or
that his bail be exonerated, or that money deposited instead of bail be refunded, unless it directs that the
case be resubmitted to the same or another grant jury: section 7094 providing that an order to set aside an
indictment as provided in that act is no bar to a further prosecution; section 7399 authorizing the court on
its own motion or on the application of the district attorney to order an action after indictment to be
dismissed; and section 7401 providing that an order for the dismissal of an action as provided in that
chapter shall bar another prosecution for the same offense if it be a misdemeanor, but not if the offense be a
felonyan order dismissing an indictment on motion of the district attorney because of a clerical error
therein did not bar a new prosecution, though no order was entered resubmitting the case to the grand jury.
38 Nev. 194, 195 (1915) In Re Hironymous
2. Indictment and InformationDismissal of IndictmentResubmission.
As on the dismissal of an indictment on motion of the district attorney because of a clerical error therein,
the failure to order a resubmission of the case to the grand jury did not bar a new prosecution, an order
directing the district attorney to take such steps, by indictment or information, as he might deem advisable
was not void as divesting the court of its discretion in the premises and imposing such discretion upon the
district attorney.
3. Indictment and InformationAmendmentResubmission to Grand Jury.
Under Rev. Laws, sec. 7060, providing that no indictment shall be deemed insufficient, nor shall the trial,
judgment, or other proceeding be affected by reason of any defect or imperfection in matters of form which
shall not tend to the prejudice of the defendant, and that the court may, on application, direct the indictment
to be amended to supply the deficiency or omission when, by such amendment, the nature of the charge
shall not be changed and the defense on the merits will not be prejudiced, where in an abundance of
precaution the court, instead of directing an indictment to be amended to cure a clerical error, dismissed the
indictment and reconvened the grand jury, which thereupon returned a second indictment, the new
indictment should be regarded in effect as simply an amendment of the first indictment.
Original Proceeding by Wesley Hironymous for a writ of habeas corpus. Writ Denied.
Platt & Sanford, for Petitioner.
Geo. B. Thatcher, Attorney-General, and J. E. Campbell, District Attorney, for
Respondent.
By the Court, Norcross, C. J.:
This is an original proceeding in habeas corpus. It appears from the return of the sheriff of
Lyon County, who is charged in the petition with the unlawful detention of the petitioner, that
on the 9th day of October, 1914, in the district court in and for Lyon County, the grand jury
returned an indictment against petitioner; that thereafter and on the same day, upon motion of
the district attorney, the said indictment was ordered dismissed, upon the ground that a
clerical error appeared therein, and it was further ordered that the grand jury reconvene at the
hour of 11 o'clock a. m. of said day; that thereafter and on the same day the grand jury
returned a second indictment against the petitioner, which was substantially in the same
form as the first indictment, except that in the second indictment the name of the
petitioner was inserted in a blank space where it evidently had been omitted through
inadvertence in the preparation of the first indictment; that thereafter, and on the 10th
day of October, 1914, petitioner interposed a plea of not guilty to the said indictment;
that thereafter, and on the 15th day of December, 1914, the case coming on for trial in
accordance with the previous setting, and before the beginning of the trial, counsel for
defendant, petitioner herein, moved the court to withdraw the plea of defendant in order
to permit counsel to both demur to the indictment and to interpose a motion to quash the
same.
38 Nev. 194, 196 (1915) In Re Hironymous
returned a second indictment against the petitioner, which was substantially in the same form
as the first indictment, except that in the second indictment the name of the petitioner was
inserted in a blank space where it evidently had been omitted through inadvertence in the
preparation of the first indictment; that thereafter, and on the 10th day of October, 1914,
petitioner interposed a plea of not guilty to the said indictment; that thereafter, and on the
15th day of December, 1914, the case coming on for trial in accordance with the previous
setting, and before the beginning of the trial, counsel for defendant, petitioner herein, moved
the court to withdraw the plea of defendant in order to permit counsel to both demur to the
indictment and to interpose a motion to quash the same.
The certified copy of the minutes of the court filed by petitioner does not show that any
order was entered permitting the plea to be withdrawn, but the minutes do show that counsel
proceeded with the argument of the demurrer and the motion to quash, and that thereafter and
on the same day the court ordered that the demurrer be overruled and the motion to quash
denied, to which orders counsel for defendant were given the benefit of an exception. Upon
the following day it appears from the minutes of the court that counsel for the defendant were
permitted to resume further argument upon the motion to quash, and the same was thereafter
taken under advisement until 1 o'clock p. m. of that day; thereafter and on the same day, and
before any further order was made by the court upon the motion to quash, the district attorney
made the following statement and motion:
After having examined the records of the stenographer taken at the time that this second
indictment was returned by the grand jury, and prior thereto, I am convinced that the order for
resubmitting the same to the grand jury after the dismissal of the first indictment was not in
fact made, and that the resubmission was an informal submission, and sufficiently informal
that it didn't comply with the letter of the statute, although the record shows the
reconvening of the grand jury, and, not desiring to carry this case into the supreme court,
and through interminable litigation, I ask at this time, and I therefore move the court to
dismiss the present indictment against this defendant, Wesley Hironymous, and enter its
order resubmitting the same to the grand jury of Lyon County, next to be convened."
38 Nev. 194, 197 (1915) In Re Hironymous
with the letter of the statute, although the record shows the reconvening of the grand jury,
and, not desiring to carry this case into the supreme court, and through interminable litigation,
I ask at this time, and I therefore move the court to dismiss the present indictment against this
defendant, Wesley Hironymous, and enter its order resubmitting the same to the grand jury of
Lyon County, next to be convened.
To the foregoing statement and motion the minutes of the court show that counsel for
defendant replied: We do not desire at this time to interpose any objection to your honor
quashing this present indictment, but for the purpose of preserving the record, we desire to
interpose an objection to the court resubmitting the case again for the consideration of the
grand jury. The ground of objection being that the present order of resubmission, if made,
must be predicated upon a proper basis of dismissal of the original indictment, and order a
resubmission upon that, and the fact that the second indictment was brought without an order
of resubmission after the dismissal of the first indictment destroys the foundation for an order
of resubmission at the present time.
The court thereupon ordered that the case be dismissed, upon motion of the district
attorney, and the court now orders that the matter be resubmitted to the present or a future
grand jury to be drawn in Lyon County. Thereafter, and on the 13th day of January, 1915,
the following order was entered:
It appearing to the court that the defendant has been held to answer in the above-entitled
case, * * * and that the charge pending against him as yet remains undisposed of, it is ordered
that the district attorney proceed at once to make a full examination of said charge, and take
such steps towards prosecution, either by indictment or by information, as he may deem
advisable in the premises, and that any previous order of this court, in so far as it conflicts
with this order, be and the same is hereby vacated and set aside.
That thereafter, and on the 2d day of February, 1915, an information was filed with the
clerk of the district court by J. E. Campbell, Esq., district attorney of Lyon County, which
information was substantially in the form of the indictment previously dismissed.
38 Nev. 194, 198 (1915) In Re Hironymous
an information was filed with the clerk of the district court by J. E. Campbell, Esq., district
attorney of Lyon County, which information was substantially in the form of the indictment
previously dismissed. Thereafter, and on the 4th day of February, 1915, defendant, petitioner
herein, was arraigned upon said information. Objection was thereupon made by counsel for
defendant to the order allowing the district attorney to proceed by indictment or information,
that the same was made in the absence of the defendant, to the form and substance of the
order, and to the power of the court to make the same, which objections being overruled,
defendant waived time in which to plead and entered a plea of not guilty.
The principal contention of counsel for petitioner is that the court, at the time of
dismissing the first indictment, having made no specific order of resubmission to the same or
another grand jury, such dismissal operated as a statutory bar, and * * * that the defendant
was at once placed in statutory jeopardy, and that he was just as free a man as if never
indicted for any offense. It is further contended that the order of the court made on the 13th
day of January was invalid and conferred no power on the district attorney to proceed by
information, in that it was an attempt to confer upon the district attorney the power to
exercise his discretion as to whether he would proceed either by indictment or by information,
or at all. In the language of counsel for petitioner, it is their contention, that the court should
have directed the district attorney to proceed by way of indictment or information against this
defendant; that, the court having said to the district attorney: You may exercise your
discretion; either proceed or do not, or if you do, proceed by way of information or
indictment'that of itself is sufficient to deprive the district attorney of the right to proceed
anew against this defendant, and the order itself appears as a bar.
[1] Counsel for petitioner have cited a number of California cases which they contend are
conclusive upon the question that failure to order a resubmission of a case at the time of the
dismissal of an indictment operates as a bar to further proceedings and entitled
defendant to absolute discharge, citing Ex Parte Williams, 116 Cal.
38 Nev. 194, 199 (1915) In Re Hironymous
at the time of the dismissal of an indictment operates as a bar to further proceedings and
entitled defendant to absolute discharge, citing Ex Parte Williams, 116 Cal. 512, 48 Pac. 499;
Ex Parte Hayter, 16 Cal. App. 211, 116 Pac. 370; Ex Parte Hughes, 160 Cal. 388, 117 Pac.
437; People v. Nogiri, 142 Cal. 596, 76 Pac. 490; and People v. Jordan, 63 Cal. 219. An
examination of all the authorities cited and relied upon by counsel for petitioner discloses that
they deal only with the question of the failure of the court to make such an order of
resubmission upon the sustaining of a demurrer to an indictment. Our statute, like the
California statute, relating to a demurrer to indictment, reads:
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. (Rev. Laws, sec. 7101.)
The only other provision of our statute where it might be contended from the language
used that failure to make an order of resubmission would operate as a bar relates to the
dismissal of a charge by a grand jury where a defendant has been held to answer upon
preliminary examination. (Rev. Laws, sec. 7044.) The Supreme Court of California, however,
has repeatedly held in construing the corresponding section in the code of that state, that
failure to make such an order of resubmission does not operate as a bar to another prosecution
for the same offense. (Ex Parte Clark, 54 Cal. 412; Patterson v. Conlan, 123 Cal. 452, 56
Pac. 105; In Re Bergerow, 136 Cal. 297, 68 Pac. 773, 56 L. R. A. 528.)
It is specifically provided by statute that an order setting aside an indictment upon any of
the grounds specified in Revised Laws, sec. 7090, is no bar to a further prosecution for the
same offense. (Rev. Laws, sec. 7094.) If the motion to set aside the indictment 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."
38 Nev. 194, 200 (1915) In Re Hironymous
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. (Rev. Laws, sec. 7092.) It will be observed that there is nothing in the sections of the
statute, relating to orders setting aside an indictment, making such orders a bar to further
prosecution unless an order of resubmission is made.
Sections 549 and 551 of the criminal practice act, which relate to dismissals of actions,
provide:
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.
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. (Rev. Laws, sec. 7399, 7401.)
No order was made sustaining a demurrer to an indictment against the petitioner; hence no
question of bar to further prosecution is presented by reason of failure to make an order of
resubmission upon the sustaining of a demurrer to an indictment. The provisions of the
statute relative to orders dismissing or setting aside an indictment leave no room for
construction that such orders operate as a bar to further indictment in the absence of an order
of resubmission, for the statute specifically provides that such orders do not operate as a bar.
In People v. Breen, 130 Cal. 72, 75, 62 Pac. 408, 409, considering a similar question, the
court said:
It is true that section 1387 refers to dismissals on the order of the court for want of
prosecution or otherwise, while section 999 refers to orders made on motion of the accused to
set aside the indictment or information. But the intention of the legislature is quite clear that
in either case the order shall not constitute a bar to any further prosecution made upon an
indictment or information for the same offense.
38 Nev. 194, 201 (1915) In Re Hironymous
In People v. Ammerman, 118 Cal. 23, 50 Pac. 15, the same question was presented, and,
after considering the case at some length and referring to a number of other California
authorities, the court said:
It is by the terms of the statute in the case of demurrer allowed that the judgment becomes
a bar unless the court directs a new information to be filed. The section does not apply to a
case where no demurrer is interposed, or, if interposed, is disallowed. This clearly appears
from preceding and subsequent sections of the same chapter.
See, also, People v. Allen, 61 Cal. 140; People v. Jordan, 63 Cal. 219; People v.
Campbell, 59 Cal. 243, 43 Am. Rep. 257; Ex Parte Job, 17 Nev. 187, 30 Pac. 699.
[2] The contention that the order of January 13, supra, directing the district attorney to
investigate the case and to proceed further, either by indictment or by information as he may
deem advisable, is void because it is an attempt to divest the court of its discretion in the
premises and imposes the same upon the district attorney is without merit, for the same
reason that the contention that the grand jury was without power to bring in a second
indictment, because of the failure of the court to specifically direct a resubmission, is without
merit.
The cases cited by counsel for petitioner in support of his contention that there must be a
mandatory order of resubmission by the court only relate to cases where the court has
sustained a demurrer to an indictment and have no bearing upon a question such as is
presented in this case.
It may be seriously questioned whether the so-called second indictment, filed on the same
day as the first indictment, was, in contemplation of the statute, another and different
indictment. In Terrill v. Superior Court, 60 Pac. 39, cited by this court in the recent case of
State v. Towers, 37 Nev. 101, 139 Pac. 779, the Supreme Court of California said:
Perhaps, before the defendant has been arraigned, the indictment could be withdrawn, and
by leave of the court sent back to the jury for amendment.
38 Nev. 194, 202 (1915) In Re Hironymous
From People v. Hanstead, 135 Cal. 149,. 67 Pac. 763, we also quoted in the Towers case,
supra, the following:
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 case 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 on that subject.
[3] Manifestly the purpose of the second indictment was to procure amendment of the
original indictment to cure an inadvertent omission which in any event was not vital to its
validity. (State v. Maldonado, 21 Wash. 653, 59 Pac. 489.) The defect in the original
indictment was in a matter of form which could not tend to the prejudice of the defendant,
and, under the provision of the statute permitting amendments (Rev. Laws, sec. 7060), we
think the court could have directed that the indictment be amended to supply the omission
without a resubmission to the grand jury. Unless more weight is given to the form than to the
substance, the fact that, in the abundance of precaution, the defective indictment was
dismissed and a corrected indictment immediately returned by the same grand jury ought to
be regarded, in effect, as simply an amendment. It is immaterial, however, in this case
whether the second indictment is considered as a new indictment or simply as an amended
indictment, as no bar to further prosecution attaches in either case.
In the petition for the writ, counsel for petitioner raised the question that the court was
without power to modify the order of December 15, 1914, supra, permitting the district
attorney to proceed either by indictment or information, in that Revised Laws, sec. 7092,
provides only for an order of resubmission to a grand jury. This point was not urged in the
argument on the hearing, and we may, for that reason, regard it as abandoned. We do not
understand that counsel for petitioner now contends that if power existed to proceed
further against the petitioner after the dismissal of the first indictment, such proceeding
might not be by information under the constitutional amendment adopted at the general
election of 1912, and the statute based thereon adopted by the legislature of 1913 {Stats.
38 Nev. 194, 203 (1915) In Re Hironymous
not understand that counsel for petitioner now contends that if power existed to proceed
further against the petitioner after the dismissal of the first indictment, such proceeding might
not be by information under the constitutional amendment adopted at the general election of
1912, and the statute based thereon adopted by the legislature of 1913 (Stats. 1913, p. 294).
See Alderman v. State, 24 Neb. 97, 38 N. W. 36.
As the bar to further prosecution, which counsel for petitioner has relied on in this
proceeding, only applies in the case of an order sustaining a demurrer to an indictment or
information, where no order of resubmission is made, and as this is not a case coming within
that rule, but is a case coming within other provisions of the statute where no bar attaches, it
follows that the proceedings must be dismissed; and it is so ordered.
____________
38 Nev. 203, 203 (1915) Presson v. Presson
[No. 2140]
MARY E. PRESSON, Appellant, v. BURTON C.
PRESSON, Respondent.
[147 Pac. 1081]
1. DomicileResidence.
Residence is a settled or fixed abode of a character indicating permanency, or at least an intention to
remain for an indefinite time, being made up of the physical fact of abode and the intention of remaining.
2. StatutesActs Relating to Same SubjectMatter-ConstructionRepugnancy.
Two statutes relating to the same subject-matter are to be read and construed together, with a view of
harmonizing them, if possible, to give effect to both, unless the later act expressly repeals the earlier, or is
so repugnant to it as to repeal it by necessary implication; repugnancy being inconsistency or conflict
with something else.
3. DivorceJurisdictionLegal ResidenceStatute.
The action was for divorce; defendant denying the jurisdictional allegation of the complaint of the
plaintiff's residence for the statutory period of six months prior to the suit brought. Upon trial to a jury,
special findings were made that plaintiff had established her residence solely for the purpose of obtaining a
divorce. Rev. Laws, sec. 5838, provides that divorce from the bonds of matrimony may be obtained, etc., in
the county in which the plaintiff shall have resided six months before suit brought;
while section 3610 provides that the "legal residence" of a person with reference to
his right of suffrage and eligibility to office, is that place where his habitation is fixed
and permanent, and to which, whenever he is absent, he has the intention of
returning.
38 Nev. 203, 204 (1915) Presson v. Presson
in which the plaintiff shall have resided six months before suit brought; while section 3610 provides that
the legal residence of a person with reference to his right of suffrage and eligibility to office, is that place
where his habitation is fixed and permanent, and to which, whenever he is absent, he has the intention of
returning. Stats. 1911, c. 158, provides that the legal residence of a person with reference to his or her *
* * right to maintain or defend any suit at law or in equity is that place where he or she shall have been
actually, physically, and corporeally present within the state of county during all of the period for which
residence is claimed by him or her. Held, that there is no necessary repugnancy between the provisions of
the Revised Laws relating to residence and the act of 1911; the latter merely adding the requirement of
physical presence to the former general requirement of the intention permanently to reside, so that the
plaintiff, taking up her residence solely for the purpose of maintaining a divorce action, did not acquire
such residence as was necessary to give the court jurisdiction of her suit.
Appeal from Second Judicial District Court, Washoe County, A. N. Salisbury, Judge.
Suit for divorce by Mary E. Presson against Burton C. Presson. Judgment for defendant,
and plaintiff appeals. Affirmed.
J. M. Frame and J. S. Parker, for Appellant.
Harwood & Springmeyer, for Respondent
By the Court, Coleman, J.:
This is an action for divorce brought in the district court of Washoe County by appellant.
there is only one question involved in the appeal, and that is one which goes to the
jurisdiction of the trial court. Plaintiff in her complaint alleged that she had been a resident of
Washoe County for the statutory period of six months prior to the institution of her suit. The
defendant in his answer denied this jurisdictional allegation.
The case came on for trial before a jury, which made special findings establishing the fact
that, while the plaintiff had actually been in Washoe County for a period of six months prior
to the filing of the suit, she came to the state and county for the sole purpose of obtaining a
divorce from the defendant, and with the intention of returning to the state from which she
came immediately upon being granted a divorce.
38 Nev. 203, 205 (1915) Presson v. Presson
returning to the state from which she came immediately upon being granted a divorce. The
point involved goes solely to the question of residence in Washoe County for the statutory
time of six months.
Section 3610 of the Revised Laws of 1912 reads: The legal residence of a person, with
reference to his right of suffrage and eligibility to office, is that place where his habitation is
fixed and permanent, and to which, whenever he is absent, he has the intention of returning.
The material portion of section 5838 of the Revised Laws of 1912 is as follows: 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 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.
In 1911 the legislature passed an act (Stats. 1911, c. 158) which provides:
The legal residence of a person with reference to his or her right of suffrage, eligibility to
office, right of naturalization, right to maintain or defend any suit at law or in equity, or any
other right dependent on residence, is that place where he or she shall have been actually,
physically and corporeally present within the state or county, as the case may be, during all of
the period for which residence is claimed by him or her; provided, however, should any
person absent himself from the jurisdiction of his residence with the intention in good faith to
return without delay and continue his residence, the time of such absence shall not be
considered in determining the fact of such residence.
[1] The learned trial judge, in his written opinion, which is a part of the record in this case,
says:
Counsel for the plaintiff admit that before the passage of the session act of 1911, entitled
An act defining what shall constitute legal residence in the State of Nevada' (Stats. 1911, c.
158), the character of residence required by section 5S3S was the same chapter of
residence as has been defined and required by the courts universally throughout the
United states, namely, a settled or fixed abode of a character indicating permanency, or at
least for an indefinite time, to which, when he is absent, he has the intention of returning,
or, in other words, an abode which is not transient, but contend that by the session act of
1911 above referred to the matter of intent has been entirely eliminated from the
question of residence, and that the divorce court has jurisdiction to grant a divorce to a
plaintiff who has been bodily present in the county for six months before such suit is
brought, although such person came to the county with the sole intent and purpose of
obtaining a divorce, and then returning to the state from which the plaintiff came."
38 Nev. 203, 206 (1915) Presson v. Presson
by section 5838 was the same chapter of residence as has been defined and required by the
courts universally throughout the United states, namely, a settled or fixed abode of a character
indicating permanency, or at least for an indefinite time, to which, when he is absent, he has
the intention of returning, or, in other words, an abode which is not transient, but contend that
by the session act of 1911 above referred to the matter of intent has been entirely eliminated
from the question of residence, and that the divorce court has jurisdiction to grant a divorce to
a plaintiff who has been bodily present in the county for six months before such suit is
brought, although such person came to the county with the sole intent and purpose of
obtaining a divorce, and then returning to the state from which the plaintiff came.
We assume that this is a correct statement of the position taken by plaintiff in the lower
court, not only because it is so stated by the trial judge, but for the further reason that counsel,
neither in their brief nor in their oral argument, indicated to the court that the statement was
erroneous. But, be that as it may, the rule of law laid down in the statement is sustained by
ample authority.
A legal residence, not an actual residence alone, but such a residence as that, when a man
leaves it temporarily or on business, he has an intention of returning to, and which, when he
has returned to, becomes and is de facto and de jure his domicile, his residence. There must
be a fixed habitation, with no intention of removing therefrom. (Hinds v. Hinds, 1 Iowa, 36;
Beach v. Beach, 4 Okl. 359, 46 Pac. 529.)
To construe the temporary residence by appellant with his wife in New York to be a
change of domicile seems to me unwarranted, for, as Mr. Justice Depue said, in Harral v.
Harral, 39 N. J. Eq. 285, 51 Am. Rep. 17, to the factum of residence must be added the
animus manendi, and that place is the domicile of a person in which he has voluntarily fixed
his habitation, not for a mere temporary or special purpose, but with a present intention of
making it his home.'" {Watkinson v. Watkinson, 6S N. J. Eq.
38 Nev. 203, 207 (1915) Presson v. Presson
making it his home.' (Watkinson v. Watkinson, 68 N. J. Eq. 632, 60 Atl. 931, 69 L. R. A.
397, 6 Ann. Cas. 326.)
Residence is, indeed, made up of fact and intention; that is, of abode with intention of
remaining. (Pfoutz v. Comford, 36 Pa. 420.)
Residence means the place where one resides; an abode; a dwelling or habitation;
especially, a settled or permanent home or domicile. Residence is made up of fact and
intention. There must be the fact of abode, and the intention of remaining. (Wright v.
Genesee Cir. Judge, 117 Mich. 244, 75 N. W. 465.)
If a party removes from his domicile, with an intention of returning, he does not lose his
domicile; as he can have acquired one nowhere else. * * * So if a person leaves the place of
his domicile temporarily, or for a particular purpose, and does not take up a permanent
residence elsewhere, he does not change his domicile. (Crawford v. Wilson, 4 Barb. N. Y.
519.)
There is a broad distinction between a legal and actual residence. * * * His legal
residence consists of fact and intention; both must concur; and when his legal residence is
once fixed, it requires both fact and intention to change it. (Tipton v. Tipton, 87 Ky. 245, 8
S. W. 440.)
In Arizona and North Dakota the statute requires residence in good faith to give the
court jurisdiction. (Smith v. Smith, 7 N. D. 404, 75 N. W. 785; Andrade v. Andrade, 14 Ariz.
379, 128 Pac. 813.) It is not a debatable proposition that, before a person who was a resident
of another state could establish a legal residence in Nevada under the statute existing prior
to the 1911 act; it was absolutely necessary that he must have come into the state with the
bona fide intention to make Nevada his permanent home. A mere coming for a special
purpose and for a limited time would not avail to establish such residence.
As was said in Fleming v. Fleming, 36 Nev. 135, 134 Pac. 445: Legal residence consists
of fact and intention combined; both must concur, and, when one's legal residence is fixed it
requires both fact and intention to change it."
38 Nev. 203, 208 (1915) Presson v. Presson
residence is fixed it requires both fact and intention to change it.
[2] What, then, is the effect of the act of 1911? This act pertains to the identical subject as
the previous act. Being in pari materia, the two acts must be read and construed together, and
so harmonized as to give effect to them both, unless the latter act expressly repeals the
former, or is so repugnant to it that the former should be held repealed by implication.
Repeals by implication are not favored. (State v. Ducker, 35 Nev. 214, 127 Pac. 990; State v.
Eggers, 36 Nev. 372, 136 Pac. 101.) This court, in considering the same point in the case of
State v. Donnelly, 20 Nev. 216, 19 Pac. 681, used the following language:
The statutes in question having been passed at the same session and being in pari
materia, the well-established rule is that they must be construed together as one statute.
(Board v. Cutler, 6 Ind. 354; McMahon v. Cincinnati R. R. Co., 5 Ind. 415; Cain v. State, 20
Tex. 358; Ranoul v. Griffie, 3 Md. 60; Cannon v. Vaughan, 12 Tex. 402; Goddard v. Boston,
20 Pick. 410; Brown v. Commissioners, 21 Pa. 42; U. S. v. Tynen, 11 Wall. 92, 20 L. Ed. 153;
U. S. v. Claflin, 97 U. S. 551 24 L. Ed. 1082; Bowen v. Lease, 5 Hill, 225; Dodge v. Gridley,
10 Ohio, 173.) If there be two affirmative statutes upon the same subject, the one does not
repeal the other, if both may consist together; and we ought to seek for such a construction as
will reconcile them together.' (Warder v. Arell, 2 Wash. Va. 283, 1 Am. Dec. 488.) When
two statutes are so flatly repugnant that both cannot be executed, and we are obliged to
choose between them, the later is always deemed a repeal of the earlier. * * * But, whenever
two acts can be made to stand together, it is the duty of the judge to give both of them full
effect. Even when they are seemingly repugnant, they must, if possible, have such a
construction that one may not be a repeal of the other, unless the later one contains negative
words, or the intention is * * * manifest by some intelligible form of expression.' (Brown v.
Commissioners, 21 Pa. 42.) The presumption is always against the intention to repeal
where express terms are not used.
38 Nev. 203, 209 (1915) Presson v. Presson
intention to repeal where express terms are not used. Hence the rule, as laid down by Chief
Justice Marshall, that a repeal by implication ought not to be presumed, unless from the
repugnance of the provisions the inference be necessary and unavoidable; * * * and the like
rule by Judge Storey, who, in considering whether a later statute repeals a former one, says
that the inquiry is whether it (the former statute) is repealed by necessary implication. We say,
by necessary implication, for it is not sufficient to establish that subsequent laws cover some,
or even all, of the cases provided for by it; for they may may be merely affirmative, or
cumulative, or auxiliary. But there must be a positive repugnancy between the provisions of
the new laws and those of the old; and, even then, the old law is repealed by implication only
pro tanto to the extent of the repugnancy. (Hogan v. Guigon, 29 Grat. 709.) And see Thorpe
v. Schooling, 7 Nev. 17.
The able, learned, and beloved jurist, Chief Justice Talbot, in Abel v. Eggers, 36 Nev. 381,
136 Pac. 103, said:
It is also a well-recognized principle that statutes relating to the same matter which can
stand together should be construed so as to make each effective.
There is no allusion in the latter act squinting at an express repeal of the former. Then is
there such repugnance between the two acts defining legal residence as to repeal by
implication the former? The former act provides that certain things shall be essential to
constitute legal residence, so as to confer the right of suffrage and to hold office, while the
latter act provides that legal residence for all purposes shall be the place where a person
shall have actually, physically, and corporeally been present for the period for which
residence is claimed.
Keeping in mind the rule that repeals by implication are not favored, and that it is our duty
to seek such a construction as will harmonize the two acts, it becomes necessary to ascertain
if there is such repugnance between the two acts as justifies a holding that the former act is
repealed by the latter. Repugnance is defined as inconsistency.
38 Nev. 203, 210 (1915) Presson v. Presson
defined as inconsistency. (Swan v. U. S., 3 Wyo. 151, 9 Pac. 931.) Repugnance means
contrary to or inconsistent with. (Cent. Dict.) In law, contrary to or in conflict with something
else. (New Standard Dict.) Under the first act, any one who came to the state intending in
good faith to establish his home therein, and who actually established such a home with the
intention of making it his permanent abiding place, became a resident, and the act of 1911
provides that actual, physical, and corporeal presence for six months shall be essential to the
establishing of a residence. We fail to see any inconsistency between the two acts. A person
may come to the state with the bona fide intention of making it his permanent abiding place,
and then follow it up by actually establishing a home and living within its walls for six
months. What is there in living within its walls for six months repugnant to his coming to the
state with the bona fide intention of establishing a permanent abiding place? May he not have
had such bona fide intention? If he could and did have it, could he not, after arriving and
establishing such an abiding place, remain within its walls of his own free will for six
months? If he could, wherein lies the repugnance? There is no repugnance between the two
acts, and the former is not repealed by implication.
Since the former act is not repealed in express terms or by implication, and since the
legislature cannot be presumed to have done an absurd thing, what must be the result of the
passage of the 1911 act? Clearly it must have been the intention to make necessary something
not theretofore required to establish residence in such a sense as to give a court jurisdiction in
a divorce suit, and that additional requirement was to make physical, corporeal presence in
the county for the statutory time an essential to the conferring of such jurisdiction. There can
be no escaping this conclusion. To take any other position would be to put an absurd
construction upon the act of 1911, and it is a canon of construction in considering legislative
enactments to avoid absurd construction.
38 Nev. 203, 211 (1915) Presson v. Presson
This court in the case of Tiedemann v. Tiedemann, 36 Nev. 494, 137 Pac. 824, in speaking
of the act of 1911, used the following language:
In the recent case of Fleming v. Fleming, 36 Nev. 135, 134 Pac. 445, we had occasion to
consider the sufficiency of allegations in a complaint for divorce, where the plaintiff based his
right of action solely upon his own residence. In that case we held that the residence required
by the statute (Rev. Laws, sec. 5838), and contemplated by the session act of 1911, was actual
residencethat is, physical, corporeal presenceand not alone legal residence or domicile,'
for the period of six months within the county wherein suit was instituted.
Again, this court, in the case of Fleming v. Fleming, 36 Nev. 135, 134 Pac. 445, held:
It is our judgment that the residence required by the statute (Rev. Laws, sec. 5838) and
contemplated by the session act of 1911 was actual residence; that is, physical, corporeal
presence, and not alone legal residence or domicile.
It is contended by counsel for the appellant that this court, in the case of Whise v. Whise,
36 Nev. 16, 131 Pac. 967, 44 L. R. A. n. s. 689, laid down a rule which practically holds that
the intention with which a person comes into the state to establish a residence is not material.
The language relied upon in that decision is as follows:
Both parties to this action had submitted themselves to the jurisdiction of the trial court,
in which court there had been a trial and determination of all of the issues, and at the
conclusion of the controversy either party had the right to go wherever he or she saw fit.
There was no intention to assert any such doctrine as contended for by appellant. The court
simply meant to say that, assuming that the trial court had jurisdiction of the case, and having
tried and determined it and entered a decree in favor of the plaintiff, there was nothing which
could prevent his leaving the state.
[3] Appellant not having come to Washoe County with the view of becoming a bona fide
resident of the county, but for the sole purpose of obtaining a divorce and then returning to
the State of Nebraska, from which she came, the trial court did not acquire jurisdiction,
and the judgment was clearly right.
38 Nev. 203, 212 (1915) Presson v. Presson
returning to the State of Nebraska, from which she came, the trial court did not acquire
jurisdiction, and the judgment was clearly right.
Judgment affirmed.
____________
38 Nev. 212, 212 (1915) Blundin v. Blundin
[No. 2142]
HARRY BLUNDIN, Appellant, v. MARY BLUNDIN, Respondent.
[147 Pac. 1083]
1. DivorceVacation of DecreeEvidence.
The court, on application to vacate a divorce decree on the ground of fraud, may not grant relief based on
a private letter addressed to him and the contents of which are unknown to the opposing party or his
counsel until it is filed as a basis of the order, and the court, if deeming the matters stated in the letter of
sufficient importance, should direct counsel of the parties to investigate the same and present the matter by
affidavits.
Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.
Action for divorce by Harry Blundin against Mary Blundin. From an order vacating a
judgment for plaintiff, he appeals. Reversed.
J. M. Frame and J. S. Parker, for Appellant.
Lunsford & Fowler, for Respondent.
By the Court, Norcross, C. J.:
This is an appeal from an order setting aside a judgment and decree of divorce in favor of
the above-named appellant. The motion to vacate the judgment was based upon the following
grounds:
That the said decree does not constitute a legal decree; that the said decree was obtained
through fraud, and is therefore a fraudulent decree.
The motion came on for hearing on the 5th day of July, 1913, upon affidavits filed and oral
testimony introduced by the respective parties. The transcript on appeal recites that:
After considering the matter, the court announced from the bench, in substance, that there
was no fraud shown in this case, but that he would allow the defendant to make a showing of
merit, and, if she could show that she had any defense to the plaintiff's complaint, he
would give her a chance to be heard, and that he would give the defendant time to file an
additional affidavit showing a meritorious defense if she could, and the hearing was
continued for that purpose."
38 Nev. 212, 213 (1915) Blundin v. Blundin
that she had any defense to the plaintiff's complaint, he would give her a chance to be heard,
and that he would give the defendant time to file an additional affidavit showing a
meritorious defense if she could, and the hearing was continued for that purpose.
The matter came on for further hearing on the 26th day of September, 1913, at which time
a further affidavit of the plaintiff was read and filed. The transcript recites the following
account of the proceedings had upon this date:
After the case had been fully argued and submitted, the court announced that the motion
would be granted and the judgment set aside. At this time the court further announced, in
substance, that he had a letter in his possession which he then produced and showed to the
attorneys, and had the same filed as an exhibit in the case, over the protest and objections of
the plaintiff, and at the same time stating, in substance, that it was on this letter that he based
his decision.
Thereupon the court ordered that the judgment be set aside on condition that defendant
answer within twenty-five days thereafter. Error is assigned in the granting of the motion; in
admitting the second affidavit of the defendant; and in considering and placing in the record
the letter written to the judge.
It appears from the motion to set aside the judgment that it was based solely upon the
ground that the decree was obtained through fraud. It also appears from the transcript that the
court found that there was no fraud in the procuring of the decree. The finding that there was
no fraud in the matter of the securing of the judgment finds support in the affidavit and other
proof offered on behalf of the plaintiff. As the court specifically found that there was no fraud
in the procuring of the decree, the order setting the same aside must be justified, if it can be
justified at all, upon some other basis. We are satisfied from a consideration of the transcript
that there is no legal basis upon which this order can be sustained. Had the application to set
aside the judgment been based upon the statutory ground of mistake, inadvertence, surprise,
or excusable neglect, there is evidence in the record which might tend to support such an
order.
38 Nev. 212, 214 (1915) Blundin v. Blundin
mistake, inadvertence, surprise, or excusable neglect, there is evidence in the record which
might tend to support such an order.
Section 142 of the civil practice act (Rev. Laws, sec. 5084) provides:
The court may likewise, upon affidavit showing good cause therefor, after notice to the
adverse party, allow, upon such terms as may be just, an amendment to any pleading or
proceeding in other particulars, and may upon like terms allow an answer or reply to be made
after the time limited; and may, upon such terms as may be just, and upon payment of costs,
relieve a party or his legal representatives from a judgment, order, or other proceeding taken
against him through his mistake, inadvertence, surprise, or excusable neglect.
It appears from the transcript not only that the motion to set aside was not based upon the
above provision of the statute, but that the court was influenced largely, if not entirely, in the
making of the order, by a letter received by him from an attorney residing in Philadelphia,
dated December 7, 1912, and addressed: To the Judge, Washoe County, Reno, Nevada.
It would be a dangerous precedent to hold that an order setting aside a judgment, even in a
divorce proceeding where the rule is very liberally applied, could be determined upon
unverified statements contained in a letter addressed to the judge, and of the contents of
which neither the opposing party or his counsel are aware until it is filed as a basis of the
order. While trial courts are to be commended in their desire to give both parties every
reasonable opportunity to be heard, the only appropriate course to have pursued, if the court
felt that matters stated in a private letter were of importance, if true, to call the attention of the
same to counsel, with directions to investigate the same, and, if the statements could be
supported, to present them to the court in the regular way by affidavit.
The order appealed from is reversed.
____________
38 Nev. 215, 215 (1915) State v. Cole
[No. 2143]
STATE OF NEVADA, Ex Rel. ZEB KENDALL, Petitioner, v. GEORGE A. COLE, State
Controller, Respondent.
[148 Pac. 551]
1. StatesOfficers and EmployeesEligibilityOffice.
Under stats. 1913, c. 128, sec. 1, creating the office of exposition commissioner of the state for the
Panama-Pacific and the Panama-California expositions, and authorizing the governor to appoint an
exposition commissioner, and section 2, creating the board of directors for the state for such expositions,
whose duty it shall be to employ superintendents, clerks, and other persons upon such terms as may be
deemed just and equitable to carry out the provisions of that act, and to cooperate and advise with the
exposition commissioner, the position occupied by a superintendent so employed was not an office
within Const. art. 4, sec. 8, providing that no senator or member of assembly shall, during the term for
which he shall have been elected, nor for one year thereafter, be appointed to any civil office of profit
under the state, which shall have been created or the emoluments of which shall have been increased during
his term, except such office as may be filled by election by the people, as the term office embraces the
ideas of continued duration, fees, or emoluments and duties, and such superintendent was intrusted with
none of the sovereign power of the state, his compensation, period of employment, and the details of his
duties being all matters of contract with the board of directors, especially as he was not required to take an
oath as required by Const. art. 15, sec. 2, in the case of officers, indicating that the state officers did not
consider him an officer.
2. Constitutional LawStatutesConstructionPractical Construction by Other
Departments of the Government.
Where a doubt exists as to the proper construction to be placed on a constitutional or statutory provision,
courts will give weight to the construction placed thereon by other coordinate branches of the government.
3. MandamusClaims for SalaryRefusal to AuditRemedy.
Where the state controller refused to draw his warrant for the salary of the superintendent, employed by
the board of directors for the Panama-Pacific and Panama-California expositions, pursuant to Stats. 1913,
c. 128, he could not be compelled to do so by mandamus, the remedy being by action, notwithstanding
section 6 of such act, making appropriations for the state's exhibits at such expositions, and providing that
all disbursements from such appropriations should be on certificates of the exposition commissioner,
approved by a majority of the directors and by the state board of examiners, when the state controller
should draw his warrant and the state treasurer pay the same, as the controller is a constitutional officer and
his duty to audit all claims against the state, except obligations fixed by law, is a
constitutional one, and cannot be infringed upon by legislative enactment.
38 Nev. 215, 216 (1915) State v. Cole
his duty to audit all claims against the state, except obligations fixed by law, is a constitutional one, and
cannot be infringed upon by legislative enactment.
Original Proceeding in mandamus by Zeb Kendall, superintendent of Nevada exhibits at
the Panama-Pacific exposition, to compel the State Controller to draw a warrant in favor of
petitioner as said superintendent. Petition dismissed.
Geo. A. Bartlett, for Petitioner:
Petitioner was not inhibited by section 8, article 4, of the constitution from holding the
position of superintendent under the act of 1913 (Stats. 1913, p. 169), authorizing the board
of directors of the Panama-Pacific and Panama-California expositions to employ
superintendents, directors, clerks, and other persons, for the simple reason that such
position of superintendent is not an office within the meaning of the constitution. (Hand v.
Cook, 29 Nev. 542; U. S. v. Hartwell, 6 Wall. 385; Bunn v. People, 45 Ill. 397; State v.
Hooker, 63 Am. St. Rep. 178, and note; Hall v. Wisconsin, 103 U. S. 9; U. S. v. Maurice, 2
Brock. 96; Olmstead v. Mayor, 42 N. Y. Sup. Ct. 481; Shelby v. Alcorn, 72 Am. Dec. 180,
and note; Mechem on Officers, sec. 4.)
Wm. Woodburn, Sr., Wm. Woodburn, Jr., and Wm. McKnight, for Respondent:
The question to be decided by the court is whether the employment of relator as
superintendent at a salary of $300 per month by the board of directors of the Panama
expositions named in the act of the legislature approved March 18, 1913, is a civil office of
profit. If it is a civil office of profit, relator is disqualified from holding, having been a
member of the legislature which created the office. (Const. Nev. art. 4, sec. 8.) The term
office, in its common acceptation, is sufficiently comprehensive to include all persons in
any public station or employment which has any duty concerning the public. It is the duty of
the office and the nature of that duty which makes him a public officer.
38 Nev. 215, 217 (1915) State v. Cole
makes him a public officer. (Vaughn v. English, 8 Cal. 41; U. S. v. Hartwell, 6 Wall. 385;
State v. Kennon, 7 Ohio St. 557; 15 Eng. Com. Law Rep. 495; 22 L. R. A. 363; People v.
Nernon, 158 N. Y. 227; Mechem on Public Officers; Rowland v. Mayor, 83 N.Y. 396;
Guthrie Daily Leader v. Cameron, 41 Pac. 636; State v. Gooding, 124 Pac. 791; Patton v.
Board of Health, 127 Cal. 394; Sacalaris v. E. & P. R. Co., 18 Nev. 161; Clark v. Stanley, 66
N. C. 59; Kenyon v. State, 7 Ohio St. 557; Michael v. State, 50 South. 929.)
In construing this provision of the constitution in its application to the petition at bar, the
courts will not ignore the general spirit of the instrument in construing provisions actually
continued therein, for it is the real intent and purpose, rather than the strict interpretationthe
essence, rather than the formthat is sought to be ascertained. (People v. Fancher, 50 N. Y.
288; State v. Conlon, 65 Ky. 478.)
Courts are not justified in giving a strained construction or an astute interpretation to a
constitutional clause, such as will avoid the intent of the framers of the instrument, in order to
relieve against any individual hardship. (Law v. People, 87 Ill. 385.)
By the Court, Coleman, J.:
[1] The legislature, in 1913, passed an act providing for exhibits at the San Diego and San
Francisco expositions (Stats. 1913, c. 128, p. 169), sections 1 and 2 of which read as follows:
Section 1. On or before the first Monday in May, 1913, the governor of the State of
Nevada shall appoint a citizen of the State of Nevada to be known as exposition
commissioner of the State of Nevada for the Panama-Pacific International Exposition and the
Panama-California Exposition, and the office of said exposition commissioner is hereby
created.
Sec. 2. Tasker L. Oddie, Gilbert C. Ross, and Geo. B. Thatcher shall constitute a board of
directors for the State of Nevada for said expositions, whose duty it shall be to employ
superintendents, directors, clerks and other persons, upon such terms as may be deemed
just and equitable, for the purpose of carrying out the provisions of this act, and for the
further purpose of cooperating and advising with the exposition commissioner in carrying
out the provisions of this act"
38 Nev. 215, 218 (1915) State v. Cole
be to employ superintendents, directors, clerks and other persons, upon such terms as may be
deemed just and equitable, for the purpose of carrying out the provisions of this act, and for
the further purpose of cooperating and advising with the exposition commissioner in carrying
out the provisions of this act
and making appropriations therefor. Thereafter the governor appointed an exposition
commissioner, and on the 29th of April, 1914, the board of directors employed petitioner as
superintendent, and fixed his salary at $300 a month. Petitioner entered upon the discharge of
his duties in the month of May, 1914, and in due time presented his bill to the exposition
commissioner for his salary for said month, which was approved by said commissioner, and
later approved by the board of examiners. The bill so certified and approved was presented to
Jacob Eggers, the then state controller, who refused to draw his warrant for the same.
Petitioner thereafter made this application for a peremptory writ of mandamus to compel
respondent to draw a warrant in his behalf for the amount of his claim, alleging his
employment as superintendent, the agreed monthly salary, and the rendition of services for
the month for which recovery is sought. Respondent filed an answer, in which it is alleged
that petitioner was at the time of the passage of the act mentioned a member of the state
senate and voted for the bill, and was such senator at the time of his appointment as
superintendent, and during the month of May, when he rendered the services alleged, and
contends that under section 8, art. 4, of the constitution, which reads:
No senator or members of assembly shall, during the term for which he shall have been
elected, nor for one year thereafter, be appointed to any civil office of profit under this state
which shall have been created, or the emoluments of which shall have been increased during
such term, except such office as may be filed by elections by the people
petitioner was disqualified from serving in the position to which he was appointed, and
from receiving a salary from the state.
38 Nev. 215, 219 (1915) State v. Cole
to which he was appointed, and from receiving a salary from the state. The constitutionality
of the act under which it is alleged that relator was employed is not questioned, nor is it
contended that relator acted in bad faith in voting for the bill, or had any expectation that he
would be in any way benefited by its passage. It is purely a question of whether or not relator
is precluded from holding the position by virtue of the section of the constitution quoted, and
in arriving at a conclusion we need only to determine if the position of superintendent is a
civil office. An office does not spring into existence spontaneously. It is brought into
existence, either under the terms of the constitution, by legislative enactment, or by some
municipal body, pursuant to authority delegated to it. All public offices must originally have
been created by the sovereign as the foundation of government. (3 Cruise's Dig. p. 109, sec.
5.)
Lord Coke says that an office can only be created by an act of parliament. (2 Inst. 540; 7
Bacon, Abr., p. 281, title. Offices and Officers; Eliason v. Coleman, 86 N. C. 235; White v.
Clements, 39 Ga. 274; Ex Parte Lambert, 52 Ala. 79; People v. Murray, 70 N. Y. 521; State
v. Kennon, 7 Ohio St. 547; Gosman v. State, 106 Ind. 203, 6 N. E. 349; Hall v. Wis., 103 U.
S. 5, 26 L. Ed. 302; People v. Langdon, 40 Mich. 673; State v. Bus, 135 Mo. 325, 36 S. W.
636, 33 L. R. A. 616; State v. Brennan, 49 Ohio St. 33, 29 N. E. 593; Shelby v. Alcorn, 36
Miss. 273; 72 Am. Dec. 169; Baltimore v. Lyman, 92 Md. 591, 48 Atl. 145, 52 L. R. A. 406,
84 Am. St. Rep. 524; State v. Broome, 61 N. J. Law, 115, 38 Atl. 841; State v. Jennings, 57
Ohio St. 415, 49 N. E. 404, 63 Am. St. Rep. 723; Miller v. Warner, 42 App. Div. 209, 59
N.Y. Supp. 956.)
It seems to us that since an office is a creature of the constitution, of legislative enactment,
or of some municipal body, we must look to the instrument which it is alleged created the
position to determine the intent of the body creating, which, in this case, is the legislature. It
would certainly be a remarkable situation if the legislature by the act in question created an
office without any intention so to do.
38 Nev. 215, 220 (1915) State v. Cole
any intention so to do. Indeed, it has been held that, in determining whether or not the
legislature in fact created an office, we must look to the intent of the legislature. (Shepherd v.
Com., 1 Serg. & R. 1; Rowland v. Mayor, 83 N. Y. 372; Bunn v. People, 45 Ill. 397; Ryan v.
Mayor, 50 How. Prac. 91.)
When the legislature created and called it an office' it was an office, not because the
peculiar duties of the place constituted it such, but because the creative will of the
law-making power impressed that stamp upon it. (Brown v. Turner, 70 N. C. 99.)
In arriving at the intent of the legislature there is an old rule which is well recognized,
Expressio unius est exclusio alterius. (State v. Blasdel, 6 Nev. 40; State v. Hamilton, 13
Nev. 389; In Re Bailey's Estate, 31 Nev. 381, 103 Pac. 232, Ann. Cas. 1912a, 743.) If this is a
safe rule, then why is it not equally safe to conclude that where the legislature specifically
designates one position provided for thereunder as an office, and does not so designate
another, the one not so designated was not intended by the legislature to attain to the dignity
of an office? To us this theory is logical. It will be noted that in the act in question the office
of said exposition commissioner is expressly created, while the board of directors are
empowered to employ superintendent, clerks and others. If the rule contended for is sound,
as we are confident it is, there is no doubt but that the legislature did not intend to create the
office of superintendent, and relator is not a civil officer.
While it may appear to be a simple matter to determine whether a position is an office or
not, the courts have experienced a good deal of trouble in doing so.
Blackstone defines an office to be:
A right to exercise a public or private employment, and take the fees and emoluments
thereunto belonging. (2 Black. Comm. c. 3, p. 36.)
Offices consist of a right and corresponding duty, to execute a public or private trust, and
to take the emoluments belonging thereto. (3 Kent Comm. 454.)
38 Nev. 215, 221 (1915) State v. Cole
A public office is the right, authority, and duty, created and conferred by the law, by
which for a given period, either fixed by law or enduring at the pleasure of the creating
power, an individual is invested with some portion of the sovereign functions of the
government, to be exercised by him for the benefit of the public. The individual so invested is
a public officer. (Mechem on Pub. Officers, sec. 1.)
Professor Wyman of Harvard defines a public office to be:
The right, authority and duty conferred by law by which, for a given period, either fixed
by law or through the pleasure of the creating power of government, an individual is invested
with some portion of the sovereign functions of the government, to be exercised by him for
the benefit of the public. The warrant to exercise powers is conferred, not by contract, but by
law. (Wyman, Pub. Officers, sec. 44.)
A right to exercise a public function or employment, and to take the fees and emoluments
belonging to it. (Bouv. Law Dict.)
And we apprehend that it may be stated as universally true that where an employment or
duty is a continuing one, which is defined by rules prescribed by law and not by contract,
such a charge or employment is an office, and the person who performs it an officer. (Shelby
v. Alcorn, 36 Miss. 289, 72 Am. Dec. 169.)
An office is:
An employment on behalf of the government, in any station of public trust, not merely
transient, occasional, or incidental. (In Re Attorneys, 20 Johns. 492.)
Public office,' as used in the constitution, has respect to a permanent trust to be exercised
in behalf of the government, or of all citizens who may need the intervention of a public
functionary or officer, and in all matters within the range of the duties pertaining to the
character of the trust. (In Re. Hathaway, 71 N. Y. 238.)
When an individual has been appointed or elected, in a manner prescribed by law, has a
designation or title given him by law, and exercises functions concerning the public,
assigned to him by law, he must be regarded as a public officer."
38 Nev. 215, 222 (1915) State v. Cole
given him by law, and exercises functions concerning the public, assigned to him by law, he
must be regarded as a public officer. (Bradford v. Justices, 33 Ga. 336.)
While, generally speaking, an officer is one employed on behalf of the government, in a
strict legal sense it means an employment on behalf of the government in some fixed and
permanent capacity, not in a capacity merely transient, occasional, or incidental. Those
engaged in mere transient or occasional employments on behalf of the municipality are more
properly employees than officers. (Bilger v. State, 63 Wash. 457, 116 Pac. 19.)
Where, however, the officer exercises important public duties, and has delegated to him
some of the functions of government, and his office is for a fixed term, and the powers,
duties, and emoluments become vested in a successor when the office becomes vacant, such
an official may properly be called a public officer.' (Richer v. Philadelphia, 225 Pa. 511, 74
Atl. 430, 26 L. R. A. n. s. 289.)
Where, by virtue of law, a person is clothed, not as an incidental or transient authority,
but for such time as denotes duration and continuance, with independent power to control the
property of the public, or with public functions to be exercised in the supposed interest of the
people, the service to be compensated by a stated yearly salary, and the occupant having a
designation or title, the position so created is a public office. (State v. Brennan, 49 Ohio St.
33. 29 N. E. 593.)
Chief Justice Marshall, while on the circuit, in the case of U. S. v. Maurice, 2 Brock. 103
Fed. Cas. No. 15,747, said:
Although an office is an employment,' it does not follow that every employment is an
office. A man may certainly be employed under a contract, express or implied, to do an act, or
perform a service, without becoming an officer. But, if a duty be a continuing one, which is
defined by rules prescribed by the government, and not by contract, which an individual is
appointed by government to perform, who enters on the duties appertaining to his station
without any contract defining them, if those duties continue, though the person be changed, it
seems very difficult to distinguish such a charge or employment from an office, or the
person who performs the duties from an officer."
38 Nev. 215, 223 (1915) State v. Cole
it seems very difficult to distinguish such a charge or employment from an office, or the
person who performs the duties from an officer.
The great weight of authority holds the term office to embrace the ideas of tenure,
duration, fees, or emoluments, and duties. (Hand v. Cook, 29 Nev. 542, 92 Pac. 3; Burrill's
Law Dictionary, 257, title Office; Throop, Pub. Officers, secs. 2-10; Foltz v. Kerlin, 105
Ind. 221, 4 N. E. 439, 55 Am. Rep. 197; Chism v. Martin, 57 Ark. 86, 20 S. W. 809; In Re
House Bill, 9 Colo. 629, 21 Pac, 473; People v. Nostrand, 46 N. Y. 381; People v. Nichols,
52 N. Y. 485, 11 Am. Rep. 734; People v. Duane, 121 N. Y. 375, 24 N. E. 845; Olmstead v.
Mayor, 42 N. Y. Super. Ct. 487; State v. Brennan, 49 Ohio St. 38, 29 N. E. 593; Shaw v.
Jones, 6 Ohio Dec. 462; Bryan v. Patrick, 124 N. C. 662, 33 S. E. 151; United States v.
Fisher, 8 Fed. 415; Hall v. Wis., 103 U. S. 8, 26 L. Ed. 302; State v. Theus, 114 La. 1097, 38
South. 873; State v. Hocker, 39 Fla. 477, 22 South. 723, 63 Am. St. Rep. 174; Ptacek v.
People, 94 Ill. App. 578; Kendall v. Reybould 13 Utah, 226, 44 Pac. 1034; United States v.
Hartwell, 6 Wall. 393, 18 L. Ed. 830; Drury, Exr., v. United States, 43 Ct. Cl. 242; State, ex
rel. Gruber, v. Champlin, 2 Bailey, 220; Brown v. Russell, 166 Mass. 14, 43 N. E. 1005, 32
L. R. A. 253, 55 Am. St. Rep. 357.)
It also held that the taking of an oath is some indication by which to determine if a position
is an office. (Goud v. Portland, 96 Me. 126, 51 Atl. 820; People v. Langdon, 40 Mich. 682;
People v. Bidell, 2 Hill, 199; Kavanaugh v. State, 41 Ala. 399; Board v. Goldsborough, 90
Md. 193, 44 Atl. 1058; State v. Gray, 91 Mo. App. 438; Fox v. Mohawk, 165 N. Y. 517, 59
N. E. 353, 51 L. R. A. 681, 80 Am. St. Rep. 767; State v. Slagle, 115 Tenn. 336, 89 S. W.
326; Reg. v. Simpson, 4 Cox C. C. 276; Collins v. Mayor, 3 Hun, 680; Worthy v. Barrett, 63
N. C. 199.)
[2] Section 2, art. 15, of the constitution of Nevada provides that all officers shall take an
oath. It does not appear that relator was required to take an oath. Evidently the state officers
did not consider relator an officer.
38 Nev. 215, 224 (1915) State v. Cole
Where a doubt may exist as to the proper construction to be placed on a constitutional or
statutory provision, courts will give weight to the construction placed thereon by other
coordinate branches of government. (State v. Brodigan, 35 Nev. 39, 126 Pac. 682.)
It is held by a great many courts that to be an officer one must be charged by law with
duties involving an exercise of some part of the sovereign power of the state. (High, Extr.
Rem. sec. 625; Opinion of Judges, 3 Me. 481; Shelby v. Alcorn, 36 Miss. 284, 72 Am. Dec.
169; Worcester v. Goldsborough, 90 Md. 193, 44 Atl. 1055; Attorney-General v. Drohan,
169 Mass. 534, 48 N. E. 279, 61 Am. St. Rep. 301; Attorney-General v. Jochim, 99 Mich.
367, 58 N. W. 611, 23 L. R. A. 699, 41 Am. St. Rep. 606; State v. Hacker, 39 Fla. 477, 22
South. 721, 63 Am. St. Rep. 177; Wyman, Pub. Off. sec. 44; State v. Jennings, 57 Ohio St.
415, 49 N. E. 409, 63 Am. St. Rep. 723; Com. v. Bush, 131 Ky. 384, 115 S. W. 249; State v.
Smith, 145 N. C. 476, 59 S. E. 649; McArthur v. Nelson, 81 Ky. 67; State v. Thompson, 122
N. C. 493, 29 S. E. 720; Sanders v. Belue, 78 S. C. 171, 58 S. E. 763; Shaw v. Jones, 6 Ohio
Dec. 462; Richie v. Philadelphia, 225 Pa. 511, 74 Atl. 430, 26 L. R. A. n. s. 289; State v.
Valle, 41 Mo. 29; Eliason v. Coleman, 86 N. C. 235; Com. v. Binns. 17 Serg. & R. 244.)
A janitor of a courthouse has been held not to be an officer. (State v. Board of Chosen
Freeholders, 58 N. J. Law, 319, 33 Atl. 739.)
A guard in a county jail is not an officer. (State v. Board, 58 N. J. Law, 33 Atl. 943.)
A deputy warden of an almshouse is not an officer. (Stewart v. Hudson, 61 N. J. Law, 117,
38 Atl. 842.)
A janitor of a police station is not an officer. (Dolan v. Orange, 70 N. J. Law, 106, 56 Atl.
130.)
A keeper of a reservoir is not an officer. (Hardy v. Orange, 61 N. J. Law, 620, 42 Atl.
581.)
A janitor of a city hall is not an officer. (Hart v. Newark, 80 N.J. Law, 600, 77 Atl. 1086.)
A school commissioner is not an officer. (Board v. Goldsborough, 90 Md. 193, 44 Atl.
1055.)
38 Nev. 215, 225 (1915) State v. Cole
A commissioner under a statute of Pennsylvania to settle compensation of claimants to
land was held not an officer. (Sheperd v. Com., 1 Serg. & R. 1.)
A public administrator was held not an officer. (State v. Smith, 145 N. C. 476, 59 S. E.
650.)
An act authorizing the employment of an attorney for the Creek Nation did not create an
office. (Porter v. Murphy, 7 Ind. T. 395, 104 S. W. 669.)
An act authorizing the appointment of a person to look after the forests did not create an
office. (Opinion of Judges, 3 Me. 481.)
The commissioners appointed pursuant to An act to fund the floating indebtedness of San
Francisco are not officers. (People v. Middleton, 28 Cal. 604.)
The persons appointed by an act of the legislature as managers to conduct and execute a
lottery grant for the benefit of a college are not public officers. (State v. Platt, 4 Harr. 154.)
Members of a bridge commission are not public officers. (State v. George, 22 Or. 142, 29
Pac. 356, 16 L. R. A. 737, 29 Am. St. Rep. 586.)
Commissioners appointed by the legislature to lay a pavement within a city are not public
officers. (Greaton v. Griffin, 4 Abb. Prac. N. S. 310.)
It was held that the regents of the University of California were not officers. (Lundy v.
Delmas, 104 Cal. 655, 38 Pac. 445, 26 L. R. A. 651.)
In the case now before us we find the superintendent of public instruction is not
appointed by the mayor, not elected by the people, nor appointed by joint convention of the
two branches of the council. He takes no official oath, gives no official bond, has no
commission issued to him, and has no fixed or definite tenure of office, but is appointed at
the pleasure of the school board. It also appears from an examination of the charter that all the
executive power relating to educational matters is vested in a department known as the
department of education,' and this department is composed of the board of school
commissioners. The superintendent of public instruction exercises no power except what is
derived from and through this board.
38 Nev. 215, 226 (1915) State v. Cole
exercises no power except what is derived from and through this board. He is simply, then, an
employee or the agent of the school board, and not a municipal official, within the meaning of
the charter. (Baltimore v. Lyman, 92 Md. 591, 48 Atl. 145, 52 L. R. A. 406, 84 Am St. Rep.
524.) To the same effect, State, ex rel. Barnhill, v. Thompson, 122 N. C. 493, 29 S. E. 720.
The case of Sheboygan Co. v. Parker, 3 Wall. 93, 18 L. Ed. 33, is one growing out of an act
of the legislature authorizing the county to aid in the construction of a railroad. The act
constituted Lewis Curtis, Billy Williams, and three other persons a board of commissioners
for aiding the project. The act authorized the commissioners, after the people had approved
such action, to borrow money on the credit of the county and to issue bonds, to be signed by
the president and secretary of the commission. The court said:
Such persons, in performance of their special duty, are in no proper sense county
officers.' They do not exercise any of the political functions of county officers, such as
levying taxes, etc. They do not exercise continuously, and as a part of the regular and
permanent administration of the government, any important public powers, trusts, or
duties.'An officer of the county is one by whom the county performs its usual political
functions; its functions of government.
The case of Town of Salem v. McClintock, 16 Ind. App. 656, 46 N. E. 39, 59 Am St. Rep.
330, is one in which a man by the name of Craycraft was employed as superintendent of the
water-works for the term of one year, and a bond was required of him. The court says:
The bonds declared upon in appellant's complaint are not official bonds; but the trustees
of the town had the right to employ Craycraft as a superintendent in the management of the
water-works, and to accept a bond from him conditioned for the faithful performance of his
duties as such superintendent, and he became in no sense an officer of the town by such
employment.
* * * There is nothing in the record of this cause showing that the trustees of the town of
Salem had, by ordinance or resolution, creating the office of superintendent of the
water-works, or by any ordinance or resolution defined, or attempted to define, the duties
of a superintendent of water-works."
38 Nev. 215, 227 (1915) State v. Cole
resolution, creating the office of superintendent of the water-works, or by any ordinance or
resolution defined, or attempted to define, the duties of a superintendent of water-works.
The case of McArthur v. Nelson, 81 Ky. 67, is one in which the circuit judge, pursuant to
legislative authority, appointed three commissioners, to hold office at his pleasure, whose
duties were to have a courthouse constructed at a cost not to exceed $50,000, and to issue
bonds therefor, for the payment of which they were empowered to levy an annual tax. The
court says:
Nor do we think it was necessary for the legislature to prescribe the term of office for the
commissioners, although they are made a body corporate and politic, with power to sue and
be sued, contract, and be contracted with, under the style of the commissioners for the
courthouse district.' They are not district officers within the meaning of section 10 of article 6
of the constitution, but are the mere agents for the district, required by the act to discharge
certain duties with reference to the building of the courthouse, and when those duties end
their employment terminates.
In Miller v. Warner, 42 App. Div. 209, 59 N.Y. Supp. 956, it was held that the
superintendent of police telegraph system of Rochester was not an officer, the court saying:
The learned counsel in this action do not cite any statute of this state creating * * * the
office of superintendent of the police telegraph system in the city of Rochester, and in the
absence of such an act there can be no such officer. * * * Certain incidents pertain to a public
office, tenure for life, during good behavior, for years, or at the pleasure of the appointing
power.
In the matter of additional compensation (4 Compt. Dec. 697) it was held that one
Dickinson, who was a disbursing agent for the World's Columbian commission, and who was
also secretary of the commission, was not an officer.
Commissioners appointed by a board of aldermen to lay out a highway under the statute of
Rhode Island are not public officers. The court says:
The cases cited by counsel for relators, bearing upon the question of what constitutes a
public office, are all in practical harmony with the view we have taken.
38 Nev. 215, 228 (1915) State v. Cole
the question of what constitutes a public office, are all in practical harmony with the view we
have taken. We will briefly refer to a few of them. Vaughn v. English, 8 Cal. 39, holds that
the clerks allowed by law in the offices of the secretary of state, controller, and treasurer are
officers. The act under which the respondent in that case was appointed expressly recognized
the position as that of an officer. He was appointed by the government, the duties he was
required to perform concerned the public, he had a definite tenure of office, and he was paid a
salary out of the public treasury. The court, in referring to the act of the legislature in question
said: The act is entitled An act to reduce and fix the salaries of officers and members of the
legislature, and the clerks of the different departments are included in the list of officers
whose salaries are fixed by the act.' Bradford v. Justices, 33 Ga. 332, holds that a county
treasurer is a public officer. The case shows that the laws of that state provide for the election
of such an officer by the people and that he exercises independent functions concerning the
public, assigned to him by law. Shelby v. Alcorn, 36 Miss. 273, 72 Am. Dec. 169, holds that a
levy commissioner is a public officer. The case shows that said office is one created by
statute; that the tenure thereof is two years; that he is required to give bond; that he receives
and disburses public funds; and that the act under which he is appointed expressly recognizes
him as a public officer. People v. Nostrand, 46 N. Y. 375, holds that commissioners
authorized by chapter 905, Laws 1869 (authorizing the construction of a highway in certain
towns), as amended by chapter 750, Laws 1870, are public officers. By virtue of said acts the
commissioners were authorized to exercise a portion of the function of government. They had
the power of taking private property for public use by right of eminent domain, and, also, to
expend a large amount of money in the construction of a public improvement. In short, they
possessed every attribute and characteristic of public officers. The vital difference between
that case and the one before us, therefore, is so apparent that comment is unnecessary. Gray
v. Granger, 17 R. I. 201, 21 Atl.
38 Nev. 215, 229 (1915) State v. Cole
Atl. 342, holds that the city engineer of the city of Providence is a public officer. There can be
no doubt of the correctness of the decision. His election was authorized by a statute which
expressly styles him an officer. He was elected by the city council in joint convention,
pursuant to an ordinance of the city, and he was specially charged with the performance of
public duties. The other cases cited are similar in principal, the persons held to be public
officers being expressly recognized as such by statute and being also clothed with some
portion of the sovereign functions of government. (Attorney-General v. McCaughey, 21 R. I.
346, 43 Atl. 646.) [Italics ours.]
It will be seen from a careful reading of the foregoing quotation that the authorities chiefly
relied upon by respondent are not in fact antagonistic to the contention of relator.
It is contended that the case of Vaughn v. English, 8 Cal. 39, is controlling because of the
fact that our constitution was taken from California, and because that case was decided before
our constitution was adopted. While it is a general rule that when a statute which has received
judicial construction by the highest court of the state in which it originated is adopted by
another state, such adoption is subject to the construction put upon it by the courts of the state
where it originated (36 Cyc. 1154), such is not the situation in the Vaughn-English case. In
that case no illusion was made to the constitution of the state, and the act out of which the
litigation grew has not been adopted by Nevada. Consequently, while we have no quarrel with
the rule, it is not applicable. In the Vaughn-English case, supra, it is said:
The term officer,' in its common acceptation, is sufficiently comprehensive to include all
persons in any public station or employment conferred by government.
This is indeed a very broad statement, and one which the Supreme Court of California has
practically repudiated several times. In the case of McDaniel v. Yuba County, 14 Cal. 444, it
was held that the examining physician of the county hospital was not an officer, but an
employee; and in the case of White v. Alameda, 124 Cal.
38 Nev. 215, 230 (1915) State v. Cole
Cal. 95, 56 Pa. 795, it was held that a driver of a street wagon, with a salary fixed by the
board of trustees, was not an officer, but a mere employee. In the case of Patton v. Board of
Health, 127 Cal. 393, 59 Pac. 704, 28 Am. St. Rep. 66, it is said:
But not all employments authorized by law are public offices in the sense of the
constitution.
Since the court in which the statement alluded to originated has repudiated it three times,
we fail to see why it should have any weight with us.
It was held in Bunn v. People, 45 Ill. 397, that the commissioners appointed under an act
providing for the erection of a new state house were not officers.
Mr. Justice Garrison, now secretary of war, in Fredericks v. Board of Health, 82 N. J.
Law, 200, 82 Atl. 528, distinguished between an office, a position, and an employment, in the
following language:
An office is a place in a government system, created or recognized by the law of the state,
which either directly or by delegated authority assigns to the incumbent thereof the
continuous performance of certain permanent public duties. * * *
A position is analogous to an office, in that the duties that pertain to it are permanent and
certain, but it differs from an office in that its duties may be nongovernmental, and not
assigned to it by any public law of the state. * * *
An employment differs from both an office and a position in that its duties, which are
nongovernmental, are neither certain nor permanent.
In a comparatively recent case, the Supreme Court of Massachusetts has observed:
The holder of an office must have intrusted to him some portion of the sovereign
authority of the state. His duties must not be merely clerical, or those only of an agent or
servant, but must be performed in the execution or administration of the law, in the exercise
of power and authority bestowed by law. (Attorney-General v. Tillinghast, 203 Mass. 539,
89 N. E. 1060, 17 Ann. Cas. 449) This court, in the case of State v. Clark, 21 Nev. 337
38 Nev. 215, 231 (1915) State v. Cole
This court, in the case of State v. Clark, 21 Nev. 337, 31 Pac. 546, 18 L. R. A. 313, 37
Am. St. Rep. 517, had occasion to determine if a notary public was a civil officer, and it held
that he was. It uses this language:
He [a notary public] is also recognized and called an officer in our statutes; is to be
appointed for a definite term; is required to take the official oath; to give a bond the same as
other officers; to keep a record of his official acts; and for his services may charge certain
fees, which are regulated by law. Clearly he is an officer. * * * In fact, we do not understand
it to be particularly contended that a notary is not a public officer, nor even that he is not a
civil officer, but rather, notwithstanding he may be such, that it was not the intention of the
makers of the constitution to include that office in the prohibition contained in this section.
This position is based, first, upon the proposition that the office of notary does not come
within the mischief intended to be guarded against, and consequently should not be held to be
within its terms. In construing a constitution, the same as any other instrument, we are not
always to be guided by the letter of the act. We are to seek for the meaning that the words
were intended to convey, and endeavor to carry out the intention of those adopting it. But a
fundamental principle in all construction is that, where the language used is plain and free
from ambiguity, that must be our guide. We are not permitted to construe that which requires
no construction. It is possible that when the convention adopted this section, they did not
have the office of notary in mind, and that if they had, it would have been excluded; but, on
the other hand, it is also possible that it would not have been excluded, for there is really as
much reason for including this office as that of many other minor positions, which are
admittedly covered by the section. At any rate, it was within the power of the constitution
makers, whether sufficient reason did or did not exist for their doing so, to include this office.
The language they have used clearly does include it, and, under the circumstances, that is the
end of the controversy. We are not permitted to speculate further as to what their real
intentions were.
38 Nev. 215, 232 (1915) State v. Cole
what their real intentions were. (Cooley, Const. Lim. 69; End. Interp. St. sec. 6; Sturges v.
Crowninshield, 4 Wheat. 204, 4 L. Ed. 529; Gibbons v. Ogden, 9 Wheat. 217, 6 L. Ed. 23.)
Upon the oral argument, counsel for the respondent contended that it was the intention of
the framers of the constitution to prevent a legislator from benefiting through employment
afforded by virtue of any act passed while he was a member of the legislature, and therefore
we should so construe the words civil officer as to embrace the position held by relator.
The paragraph last quoted answers the contention.
In the more recent case of Goldfield Con. M. Co. v. State, 35 Nev. 178, 127 Pac. 77, this
court had occasion to assert the same rulethat if the words of the statute embody a definite
meaning, there is no room for construction. (U. S. v. Graham, 110 U. S. 219, 3 Sup. Ct. 582,
28 L. Ed. 126.)
It is the duty of courts [in construing a statute] to confine themselves to the words of the
legislature, nothing adding thereto, nothing diminishing. (Eddy v. Morgan, 216 Ill. 437, 75
N. E. 174.)
In view of the great caution exercised by the constitutional convention in the choice of its
words, as shown by the debates, and in view of the ease with which it could have said civil
office of profit or employment, we are forced to the conclusion that the words civil office
of profit were used advisedly, and that they must receive their ordinary construction.
After a careful consideration of the authorities, we are satisfied that not one element of an
office enters into the position held by relator. None of the sovereign power of the state is
intrusted to him. His compensation, period of employment, and the details of his duties, are
all matters of contract with the board of directors. For, while the act says the board may
employ superintendents, directors, clerks, and other persons for the purpose of carrying out
the provisions of the act, and for the further purpose of cooperating and advising with the
exposition commissioner, it is apparent that the board had the authority to contract as to
what the specific duty of each employee should be, otherwise there would be a corps of
advisers, and none to execute.
38 Nev. 215, 233 (1915) State v. Cole
to contract as to what the specific duty of each employee should be, otherwise there would be
a corps of advisers, and none to execute.
[3] This court, in the cases of State, ex rel. Mighels, v. Eggers, 36 Nev. 364, 136 Pac. 104,
and State, ex rel. Abel, v. Eggers, 36 Nev 372, 136 Pac. 100, 104 held that if the salary of an
officer was not fixed by law, the state controller had a right to audit the claim, and, this being
true, the petitioner had an action at law, and therefore the court was without jurisdiction to
issue a mandamus. This rule was suggested to counsel by the court at the time of the oral
argument, and, as we understand, counsel conceded the correctness of the rule and its
application to this case, save that it is contended that the case is taken out of the rule because
of the following language in section 6 of the act providing for the exhibit at the expositions.
which reads:
* * * And all disbursements from each of said appropriations shall be on certificates of
the exposition commissioner, approved by a majority of the board of directors and by the
state board of examiners, when the state controller shall draw his warrant and the state
treasurer pay the same.
The question here involved was considered at length by this court in the case of Lewis v.
Doron, 5 Nev. 399, and at a time so soon after the adoption of the constitution that the
question should be held settled for all time. It was there held that the state controller is a
constitutional officer, and that his duty to audit all claims against the state, except obligations
fixed by law, is a constitutional one, and cannot be infringed upon by legislative enactment.
For a thorough understanding of the case it is necessary that it be read at length; consequently
we will not quote from it. See, also, Love v. Baehr, 47 Cal. 367.
We are satisfied that this court is without jurisdiction to entertain these proceedings, and
that relator should be left to his legal remedy.
It is to be hoped that attorneys will not make applications to this court in the future in
matters in which the court is without jurisdiction, as we will not consider them further than
to determine the jurisdictional question, unless it be in cases of great public concern.
38 Nev. 215, 234 (1915) State v. Cole
further than to determine the jurisdictional question, unless it be in cases of great public
concern.
It is ordered that the petition be dismissed, at the cost of relator.
Norcross, C. J., concurring:
I concur in the opinion and order. The principal question in the case is quite exhaustively
considered in the opinion of the learned junior justice. While nothing need be added, a few
additional observations may not be entirely surplusage.
The word office or officer is used in the constitution in more than twenty different
sections, and in no instance where either of such words is used is there any context which
would indicate a broader definition than that which legitimately belongs thereto. The word
office is frequently so used in a statute that when the whole context of the statute is
considered, a court is bound to give the word a broader meaning than its true definition
imports. An illustration of this may be found in the case of Vaughn v. English, 8 Cal. 41, so
much relied upon by counsel for respondent. The question before the court in that case was
whether clerks in several of the state offices were officers within the meaning of section 6 of
a certain act, entitled An act to reduce and fix the salaries of officers and members of the
legislature. The salaries of the several clerkships were specifically fixed by the act, and it
was provided in section 6 that the act shall not be held to reduce the salary or pay of any of
the incumbents now in office, * * * but shall apply to every such officer hereafter elected or
appointed.
The court was justified in construing the word office as used in that statute to include the
clerkships, for the intent of the legislature was so clearly manifested. That case is very far,
however, from being an authority holding that the word office, as used in a provision of a
constitution, in the absence of a context which would affect its proper signification, would
have the same broad meaning. It could as well be argued that the legislature of California did
not consider members of the legislature as officers because the title of the act in question
in the Vaughn case used the expression "officers and members of the legislature."
38 Nev. 215, 235 (1915) State v. Cole
of California did not consider members of the legislature as officers because the title of the
act in question in the Vaughn case used the expression officers and members of the
legislature. In the opinion in the Vaughn case, which in its entirety is less than a page, is
found this expression:
The term officer,' in its common acceptation, is sufficiently comprehensive to include all
persons in any public station or employment conferred by government.
This fugitive expression, unnecessary to a determination of the question involved, and
unsupported by authority, if literally true, would make every employment in the public
service an office. The man digging a sewer at day's wages would be an officer as much as the
mayor of a city or a governor of a state. Against this view of the common acceptation of the
term may be interposed the expression of the Supreme Court of the United States, speaking
through Mr. Justice Brewer in Louisville R. R. Co. v. Wilson, 138 U. S. 501, 11 Sup. Ct. 405,
34 L. Ed. 1023:
The terms officers' and employees' both alike refer to those in regular and continual
service. Within the ordinary acceptation of the terms, one who is engaged to render services
in a particular transaction is neither an officer nor an employee. They imply continuity of
service, and exclude those employed for a special and single transaction.
All authorities recognize a distinction between the term office and employment; that
although it may be said that every office is an employment, every employment is not an
office. Clerkships have sometimes been classified as distinguishable both from officers and
employees, as is the case of the federal statute considered in Hand v. Cook, 29 Nev. 518, 92
Pac. 3. As pointed out in the prevailing opinion, the Supreme Court of New Jersey makes
three classificationsOffice, position, and employmentand defines and distinguishes each.
The word office or officer is used in the constitution of this state in more than twenty
different sections, and in no instance where such words are used is there any context which
would indicate a broader definition than that which legitimately belongs to such words.
38 Nev. 215, 236 (1915) State v. Cole
context which would indicate a broader definition than that which legitimately belongs to
such words.
Notwithstanding the words civil office of profit appear in the section of the constitution
without context of qualifying expression, affording justification for construction, we are
urged to construe into the language something that is not there, and to hold that the
convention in adopting, and the people in ratifying, the constitution, intended to adopt a
policy which the language of the constitution fails to express. As said in 6 Ruling Case Law,
47:
Courts are not at liberty to disregard the plain meaning of words of a constitution in order
to search for some other conjectured intent.
This maxim of constitutional law was applied by this court in State v. Clark, 21 Nev. 333,
31 Pac. 545, 18 L. R. A. 313, 37 Am. St. Rep. 517, in construing the identical words involved
here, found in the section of the constitution following the one in question. This court in the
Clark case said:
A fundamental principle in all construction is that where the language used in plain and
free from ambiguity, that must be our guide. We are not permitted to construe that which
requires no construction.
We can no more in this case say that what is in fact a mere employment is nevertheless
within the meaning of civil office of profit than the court in the Clark case could say that
the office of notary public was not within the meaning of such language. As the language
used is plain and free from ambiguity, as held in the Clark case, it comprehends every office
of whatever character, and it follows, as a necessary sequence, that it likewise excludes every
position or employment that does not possess the character of an office.
That the constitutional convention was not laboring under any misapprehension as to there
not being a distinction between the meaning of the words office and employment is
clearly manifest from another section of the same article 4, Legislative Department. Section
28 of that article, in part, reads: "No money shall be drawn from the state treasury as salary
or compensation to any officer or employee of the legislature, * * * except in cases where
such salary or compensation has been fixed by a law."
38 Nev. 215, 237 (1915) State v. Cole
No money shall be drawn from the state treasury as salary or compensation to any officer
or employee of the legislature, * * * except in cases where such salary or compensation has
been fixed by a law.
If the framers of the constitution had intended employments as well as offices to be
within the meaning of section 8, art. 4, it was just as easy to have said so as it was in section
28. They did not say so, and we would be violating a fundamental rule of constitutional
interpretation to hold that they said what they did not say. The judgment of the members of
this court as to whether it is or is not good policy for the petitioner to hold the office in
question is beside the case.
That many public positions in our scheme of government are not offices, as that term is
used in the constitution, is also apparent when other constitutional provisions are considered.
By section 3, art. 15, it is provided:
No person shall be eligible to any office, who is not a qualified elector under this
constitution.
Notwithstanding this latter provision, most of the public money, that has been paid to the
school-teachers of the state for the past half century has been paid to persons who were not at
the time qualified electors, hence such school-teachers could not have been regarded as
officers within the meaning of the constitution, nor would it be seriously argued that the
constitution contemplated that public-school teachers should be considered officers within the
meaning of the constitution. The position of a teacher in our public schools has, however, far
more the elements of an office than that of a superintendent under the act of 1913 in
question.
An examination of the statutes enacted by the various sessions of the legislature will
disclose laws too numerous to mention, empowering various state officers to employ
assistants who are paid salaries fixed by law, but who have never been regarded by any
branch of government as officers within the purview of the constitution. If every position
created by the legislature could be regarded as an office, then every female clerk,
stenographer, or attache of the legislative, executive, or judicial branch of the government
for the past fifty years has been serving in violation of the constitution, and all three
departments of government have been conspicuous violators of the organic law.
38 Nev. 215, 238 (1915) State v. Cole
the government for the past fifty years has been serving in violation of the constitution, and
all three departments of government have been conspicuous violators of the organic law.
It will not do to say that the word office means one thing in one section and another
thing in another section, unless qualifying language appears in one section and not in the
other. The rules of constitutional interpretation fortunately do not permit of individual
speculation as to what ought to be.
That both the legislative and executive branches of the state government have manifested a
clear understanding that a distinction existed between offices and employments is apparent in
the legislation that has been enacted from the beginning of our government. With the one
exception of the office of deputy state treasurer, every statute authorizing a deputy state
officer uses the word appoint, and in the case of the deputy state treasurer, where the words
employ a deputy are used, it appears that the original act of 1865, An act to authorize the
state treasurer to employ a clerk (Stats. 1864-65, c. 88), was subsequently amended by
changing the word clerk to the word deputy (Stats. 1873, c. 15). While not conclusive,
the fact that the legislature in creating positions has, in practically every instance, used the
word appoint in cases where offices were clearly created and the word employ in other
cases is at least persuasive that the legislature clearly recognized the distinction between an
office and a position or employment.
As pointed out in the prevailing opinion, the statute of 1913, after creating the office of
commissioner, makes it a duty of the board of directors to employ superintendents,
directors, clerks and other persons. The purpose of the act as indicated by its title is to
provide for exhibits of the products of the State of Nevada at two expositions which are
concluded during the year 1915. The position has no permanency, but is for a transient
purpose only, not does the statute specify a single duty to be performed other than to
cooperate and advise with the exposition commissioner."
38 Nev. 215, 239 (1915) State v. Cole
commissioner. Such a position carries with it no independent authority and partakes of none
of the elements of an office. Petitioner is a mere agent of a superior authority withy no
defined duties, and is clearly the occupant of a position or employment, and not an office.
In State v. Spaulding, 102 Iowa, 639, 72 N. W. 288, in determining that the treasurer of
the commission of pharmacy was not a public office, after considering numerous cases,
the court uses language applicable to the facts of the case at bar as follows:
In the case at bar, the duties performed by the defendant do not indicate an office rather
than an employment. He was, as we have shown, entirely dependent for his place upon the
will or caprice of the commission. The duties imposed upon him were not the result of the
law, but the will of his superiors, the commission. He was the creation of it, to do its will,
having no independent functions. Duration or continuance is embraced in the term office,'
and a position temporary in its character, and which may end at the will of a superior, is not
ordinarily to be considered an office. (Mechem. Pub. Off. sec. 8.) * * * So a position the
duties of which are undefined, and which can be changed at the will of the superior, * * * is
not an office, but a mere employment, and the incumbent is not an officer, but a mere
employee.' (19 Am. & Eng. Ency. Law, pp. 387, 388, and cases cited.)
While there is authority in support of the proposition that a mere legislative declaration
that a position is created as an office makes it an office, whether it otherwise would so be
regarded or not, it does not follow that if the legislature designated a position an employment
which in fact had the attributes of an office, it would in law be regarded as merely an
employment. Upon the contrary, any employment which invests the person with the exercise
of governmental powers and duties, not merely transitory, which powers and duties may be
exercised and performed by virtue of the state and not as an agent carrying out the
directions of a superior authority, constitutes an office, no matter how it may be
designated.
38 Nev. 215, 240 (1915) State v. Cole
agent carrying out the directions of a superior authority, constitutes an office, no matter how
it may be designated.
It is unquestionably the paramount duty of courts to enforce the will of the sovereign
people, as expressed in the organic law, but in determining what is the sovereign will
experience has crystallized certain inflexible rules which eliminate the personal equation of
the individual judge, and which forbid the substitution of his personal views for the decree of
a convention or people.
To say that the undefined position of superintendent under the act of 1913 is an office,
or that, notwithstanding it is not an office, it is within the constitutional inhibition of section
8, article 4, would, in my judgment, be clearly erroneous in the first case and contrary to
fundamental rules of constitutional interpretation in the second case.
McCarran, J., dissenting:
I concur in the order dismissing the proceedings for want of jurisdiction. I dissent from
that portion of the prevailing opinion which tends to hold that the relator does not come
within the inhibition of section 8, art. 4, of the constitution of this state. The section of the
constitution above referred to is as follows:
No senator or member of assembly shall, during the term for which he shall have been
elected, nor for one year thereafter, be appointed to any civil office of profit under this state
which shall have been created, or the emoluments of which shall have been increased during
such term, except such office as may be filled by elections by the people.
This constitutional provision did not originate with the framers of our organic law. It had
been incorporated into the constitutions of many of the states of the Union admitted prior to
1864. It was then, and is now, to be found in the constitution of the State of New York, as
well as in the constitution of the State of Californiaof which last-named state, thirty-eight
out of the forty-six members composing our constitutional convention were former residents.
It was from the organic acts of these two commonwealths that this, as well as many other of
our constitutional provisions, was adopted.
38 Nev. 215, 241 (1915) State v. Cole
constitutional provisions, was adopted. We are justified in assuming that the founders of our
constitution, in adopting this specific provision from the constitutions of other states, did so
not only in a spirit of approval of the provision, but especially in the light of such applications
and constructions as had been given to it, or to the words contained in it, but the courts of the
states from whence it was adopted. And where words or phrases, contained in the adopted
provisions, have received judicial interpretation and definition by the parent state, the framers
of the constitution of the adopting state are presumed to adopt and to intend to apply such
definition or interpretation, where conditions make them applicable. When this constitutional
provision was adopted, it is reasonable to suppose that it was adopted in the light of such
expression, coming either from lexicographers or from judicial declaration, as indicated the
force and effect of reach term therein used, as well as its scope and significance, in its usual
and ordinary acceptation by antecedent and contemporaneous authorities.
The Supreme Court of the State of California, at whose bar eleven members of our
constitutional convention were practicing attorneys, had construed the word office in a
decision rendered by Mr. Justice Terry, speaking for the court, in 1857, some eight years prior
to the adoption of our constitution, and in that decision the term officer, in its common
acceptation, was held to be sufficiently comprehensive to include all persons in any public
situation or employment conferred by government. The court, in that instance, quoted from an
old English lexicographer, as follows:
Officers are public or private, and it is said every man is a public officer who hath any
duty concerning the public, and he is not the less a public officer where his authority is
confined to narrow limits, because it is the duty of his office and the nature of that duty which
makes him a public officer, and not the extent of his authority. (Jacobs's Law Dict. vol. 4, p.
433.) (Vaughn v. English, 8 Cal. 41.)
Burrill's Law Dictionary, a standard of authority at the time at which this provision was
incorporated into the organic law of the several states, holds that an office is:
38 Nev. 215, 242 (1915) State v. Cole
the time at which this provision was incorporated into the organic law of the several states,
holds that an office is:
A position or station in which a person is employed to perform certain duties, or by virtue
of which he becomes charged with the performance of certain duties, public or private.
As to what was the common acceptation of the term office prior to and at the time of the
adoption of this provision of our constitution may be ascertained from the case of People v.
Hayes, et al., 7 How. Prac. (N. Y.) 248, in which the Supreme Court of New York approved
the expression of Chancellor Sandford wherein he said:
An office' * * * is a public charge or employment, and the term seems to comprehend
every charge or employment, in which the public are interested. * * * Every office is
considered public, the duties of which concern the public. (5 Bac. Ab. 180; 2 Tom. Dic.
Office; People v. Bedell, 2 Hill, 199.)
And in the same decision the court also approved of the expression:
Every one who is appointed to discharge a public duty and receive compensation in
whatever shape, whether from the crown or otherwise, is a public officer.
It makes little difference, in my judgment, as to what may be the varied interpretations and
definitions that have been applied to the words or expression civil office of profit or the
word office or officer. We may ring the changes on these words as we wish, the policy
sought to be established by the framers of our organic law, when they incorporated into that
law section 8 of article 4, remains the same; the protection sought to be afforded remains the
same; the inhibition sought to be established remains the same.
The words employed in section 8, article 4, of the constitution require no construction or
interpretation. By the framers of the constitution, they were intended to carry and convey the
general force and effect ordinarily given to them at that time. Read this section, and insert in
place of the word office the definition given to that word by the courts of New York and
California in the Hayes and Vaughn cases, supra, and it follows that it was the intention of
the framers of our constitution to prohibit a senator or member of the assembly from
being appointed to any position or employment of profit in which, or by virtue of which,
he would become charged with the performance of any public duties, where such position
or employment was created during his term as a senator or member of the assembly or
for one year thereafter.
38 Nev. 215, 243 (1915) State v. Cole
given to that word by the courts of New York and California in the Hayes and Vaughn cases,
supra, and it follows that it was the intention of the framers of our constitution to prohibit a
senator or member of the assembly from being appointed to any position or employment of
profit in which, or by virtue of which, he would become charged with the performance of any
public duties, where such position or employment was created during his term as a senator or
member of the assembly or for one year thereafter.
In reviewing the innumerable expressions rendered by the various courts from times of
antiquity until the present day, tending to define the words office and officer, we may
lose sight of the fundamental thing sought to be prohibited by the section of the constitution
herein involved. We may dwell at length on the technical phases of the words office and
officer, but the more we attempt to become technical in this respect, the more we lose sight
of that great, broad, wholesome policy, established by the framers of the organic law, by
which incidents such as that presented in the case at bar were sought to be averted.
The seriousness with which the members of the constitutional convention regarded this
provision may be gathered from the very brief but pointed discussion which took place at its
adoption, and in this respect we find, on page 141 of Andrew J. Marsh's official report of the
Debates and Proceedings on the Adoption of the Constitution of Nevada, the following:
Section 8 was read, as follows: Sec. 8. No senator or member of assembly shall, during
the term for which he shall have been elected, nor for one year thereafter, be appointed to any
civil office of profit under this state which shall have been created, or the emoluments of
which shall have been increased during such term, except such office as may be filled by
elections by the people.'
Mr. KenndeyI move to strike out the words, nor for one year thereafter.'
Mr. JohnsonNow, Mr. Chairman, it must be apparent to the members of this
committee what is the object of the incorporation of this provision.
38 Nev. 215, 244 (1915) State v. Cole
to the members of this committee what is the object of the incorporation of this provision. I
think it is right as it is, and I hope those words will not be stricken out. It is to prevent the
creation of offices which can be filled by those persons who themselves created them.
Sometimes it may occur that a valuable and important office is proposed to be created by the
legislature, and a combination can be made to secure the passage of the bill establishing such
an office by the efforts of the expected incumbent. Under this provision, if the amendment be
adopted, the incumbency might be so arranged as to expire within a short time, and then it
would, of course, be necessary to supply the office.
It was to prevent the creation of offices which could be filled by those persons who
themselves created them that the framers of the constitution adopted section 8, art. 4. They
adopted this section in the identical language in which it occurred in the then existing
constitution of the State of California; they adopted the words of this section, with their
meaning and significance embracing such a scope as had been declared by judicial
interpretation in the state from whence they were adopted, and with which interpretation at
least eleven members of the convention, admitted practitioners at the bar of the Supreme
Court of California, must have been familiar; and in this respect they had before them the
case of Vaughn v. English, supra, already referred to, a decision which, by the way, has been
referred to approvingly in nearly every decision that has been rendered since that time by the
courts, in which the subject has been gone into at length. They, therefore, adopted this
provision to prevent the creation by the legislature of public situations or employments which
could be filled by those persons who themselves created them.
In the case at bar, dwell as we will upon the varied and various definitions to be given to
the words office or officer, we have a most striking presentation of the very thing which
section 8, art. 4, of the constitution was incorporated in the organic law to prevent: The
petitioner, a member of the legislature; the legislature of which he is a member passes an
act providing for the creation of certain positions, and imposing a tax upon the people of
the state and their property for the payment of the salaries of those who might thereafter
be appointed to those positions.
38 Nev. 215, 245 (1915) State v. Cole
which he is a member passes an act providing for the creation of certain positions, and
imposing a tax upon the people of the state and their property for the payment of the salaries
of those who might thereafter be appointed to those positions. After the close of the
legislature by which the act was passed, petitioner, still a member of that body which passed
the act, is appointed to one of the positions which, by his vote, he created. When established
policies, broad principles, and manifest purposes confront us, aimed at prohibiting conduct
and conditions such as these, should we quibble over far-fetched or fine-spun definitions of
simple words, to the end that these policies, principles, and purposes may be lost sight of,
warped, or destroyed?
If petitioner can be relieved of the inhibition of section 8, art. 4, then every one of the
members of the legislature of 1913 is free from the operation of that constitutional
provisionfree to hold and receive the emoluments of positions which they created, if, by
either chance, accident, or design, the position was not specifically termed office.
If I grasp the significance of the prevailing and concurring opinions in this case, the only
thing that will prevent a member of the legislature from occupying a position created by the
session of which he is a member is that the position be by the act itself declared to be an
office.
However much we may feel ourselves bound by precedent established by other courts,
however much the rule of stare decisis may be worthy of being followed, we should not be
blinded by the labyrinth of technical definitions to such an extent as to lose sight of the aims
and purposes and beneficial results sought to be brought about and accomplished by the
policy established in the first instance by the organic law; and in the case at bar we should
rather regard the seriousness of the protection sought to be secured to the people by the
operation and enforcement of this constitutional inhibition. The words of a constitutional
declaration such as this should not be narrowed down by finespun theories to a point where
they exclude that which the framers intended to embrace.
38 Nev. 215, 246 (1915) State v. Cole
There can be no construction where there is nothing to construe. Words should be given the
scope and significance which they bore to the minds of those who incorporated them into the
constitution. The intention of the framers of the law must be gathered from the words used,
giving to them their contemporaneous acceptation. Where the framers of the constitution
attempt, as in this instance, to establish a broad policy, forced or overstrict construction
should not be resorted to, to the end that the wholesomeness of the of the policy to the body
politic might be impaired or destroyed. The safer course, in my judgment, is to adopt that
sense of the words employed or of the terms used that will insure, in the broadest scope, the
fulfillment of the policy and aims sought to be established and accomplished.
In matters of this character, we may invade the realm of conjectural hypothesis and rob it
of its most fairylike fancies. But, returning to the terra firma of things as they are, we are
confronted with a rule set to govern human conduct, prescribed by a superior, and which an
inferior is presumed to obey. We are confronted with the constitutional provision here
involved, in the face of which we are asked the question: Can the members of the legislature
create positions, tax the property of the state to pay the salaries, and then occupy the positions
and draw the salaries themselves? This is the question presented by the case.
If precedent were essential to lead the way in this case, it is only necessary to cite a few of
the many cases that might be cited to support the opposite position from that taken by my
learned associates. (People, ex rel., v. Nostrand, 46 N.Y. 375; Shelby v. Alcorn, 36 Miss. 289,
72 Am. Dec. 169; Rankin v. Jauman, 4 Idaho, 53, 36 Pac. 502; McCornick v. Thatcher, 8
Utah, 301, 30 Pac. 1091, 17 L. R. A. 243; People v. Hayes, 7 How. Prac. 248; Patton v.
Board of Health, 127 Cal. 398, 59 Pac. 702, 78 Am. St. Rep. 66; Clark, et al., v. Stanley, et
al., 66 N. C. 63, 8 Am. Rep. 488; People, ex rel. Throop, v. Langdon, 40 Mich. 673; Michael
v. State, 163 Ala. 425, 50 South. 930; U. S. v. Hartwell, 6 Wall. 385, 18 L. Ed. 830; Enc. U.
S.
38 Nev. 215, 247 (1915) State v. Cole
Sup. Ct. 956; Vaughn v. English, 8 Cal. 41; Schmitt v. Dooling, 145 Ky. 240, 140 S. W. 97,
36 L. R. A. n. s. 881, Ann. Cas. 1913b, 1078; U. S. v. Germaine, 99 U. S. 508, 25 L. Ed. 482;
Talbot v. U. S., 10 Ct. Cl. 426; Louisville v. Wilson, 99 Ky. 598, 36 S. W. 944; State v. May,
106 Mo. 488, 17 S. W. 660; Collins v. N. Y., 3 Hun, 680.)
Aside from the expression set forth in these and numerous other decisions, wherein
thought and consideration of the courts generally have been expressed by judicial
utterancesaside from all this, the question is, in my judgment, not one of extreme intricacy,
but is one of easy answer and solution. We have a policy and a purpose and an inhibitory
declaration, created by an organic law, not narrow but broad, not rigid but flexible, not harsh
but wholesome. No kindly light by way of judicial expression is required to lead the way,
for there is, in fact, no encircling gloom. The words used in the section are so plain and
self-explanatory, the policy established is so manifest, and the result is so wholesome, that
these features in themselves light the way to comprehension and application.
The highest duty of the courts is to be an affirmative force in putting into execution the
properly expressed will of the people, and to this end it is the ever-attendant duty of the courts
to see to it that a properly declared rule, prescribed by a constitutional or legislative body, is
not deprived of its lifeblood by some strained construction, to such an extent as to destroy its
power of effective operation.
Pages might be written in an analytical discussion in furtherance of my views, briefly set
forth herein. But, as the accomplishment of a dissenting opinion is usually nil, it will suffice
to say that, in my judgment, the petitioner in this case holds a position which by constitutional
provision he is prohibited from occupying and from which by constitutional provision he is
prohibited from receiving the emoluments, and the petition, therefore, should be denied, not
only for want of jurisdiction, but by reason of the constitutional inhibition as well.
____________
38 Nev. 248, 248 (1915) Marshon v. Toohey
[No. 2121]
A. MARSHON, Respondent, v. P. H. TOOHEY, Appellant.
[148 Pac. 357]
1. ExecutionWrongful ExecutionRemedy.
An owner whose property is wrongfully seized under execution against another has, ordinarily, an
adequate remedy at law for damages, except where his business and credit will be so affected as to make it
difficult or impossible to estimate the injury in damages, in which case he may seek injunctive relief.
2. Fraudulent ConveyancesBulk Sales ActStock of Merchandise.
A sale of a saloon and dance-hall, without complying with bulk sales act (Rev. Laws, 3908-3912),
regulating the sale of merchandise in bulk otherwise than in the usual course of trade, is prima facie void as
against creditors of the seller, and the stock of liquors sold and the money derived therefrom are subject to
execution against the seller, while the glassware, bar fixtures, and furnishings of the dance-hall and saloon
are not within the description of portion of a stock of merchandise within the statute, and these articles
are not subject to execution against the seller.
Appeal from the Seventh Judicial District Court, Esmeralda County; Peter J. Somers,
Judge.
Action by A. Marshon against P. H. Toohey. From an order refusing to set aside an
injunction pendente lite, defendant appeals. Affirmed, subject to rights of defendant to apply
for modification of the injunction.
Thompson & Thompson, for Appellant;
The complaint does not show that the injury complained of is irreparable. It is not
sufficient that the complaint allege that the injury would be irreparable. (Thorn v. Sweeney,
12 Nev. 256.) What injuries shall be regarded as irreparable at law must depend upon the
circumstances of the particular case. (Ritter v. Patch, 12 Cal. 298; Turnpike v. Board, 13 Cal.
191; Cobby v. City of Spokane, 42 Pac. 112; High on Injunctions, 3 ed. vol. 1, sec. 34.)
This complaint does not allege that defendant is insolvent or unable to discharge or satisfy
any judgment that might be obtained against him in an action at law. (10 Ency. Pl. & Pr. 956;
High on Injunctions, vol. 1, sec. 653; Meadow Valley M. Co. v. Dodds, 6 Nev. 261.) It must
affirmatively appear from the complaint that the plaintiff has a clear, legal right to the
possession of the property, and that he has no plain, speedy, and adequate remedy at
law.
38 Nev. 248, 249 (1915) Marshon v. Toohey
It must affirmatively appear from the complaint that the plaintiff has a clear, legal right to
the possession of the property, and that he has no plain, speedy, and adequate remedy at law.
(State v. Jumbo Ex. M. Co., 30 Nev. 205; Markley v. Rand, 12 Cal. 276; 2 Freeman on
Executions, 437; Imlay v. Carpenter, 14 Cal. 173; Mariner v. Smith, 27 Cal. 649.)
A saloonkeeper is a merchant. (Words & Phrases, vol. 5, p. 4487; In Re Sherwood, 21 Fed.
Cas. 1285.) The term merchant embraces all who buy and sell any species of movable
goods for gain or profit. (Words & Phrases, vol. 5, p. 4482; Rosenbaum v. City, 24 S. E. 1-2,
118 N. C. 83, 32 L. R. A. 123.) The term merchandise has a very extended meaning,
covering all articles of commerce. (Words & Phrases, vol. 5, p. 4480; 26 Am. Rep. 110.)
John R. Kunz, for Respondent;
The object of a restraining order is to give the party seeking it a more plain, speedy,
adequate, and complete remedy for the wrong complained of than he can have at law. The
answer admits that the property sought to be seized to satisfy the execution against Rosenthal
& Dilley was not their property; therefore it must be attempted abuse of process, and
consequently respondent was entitled to the relief sought. (22 Cyc. 788.)
It is admitted that the officer, appellant herein, was ready, willing and anxious to seize the
property and business involveda trespasser on property admitted not to be the property
against which a judgment had been obtained. This is held to be ground for interference of
equity by injunction to restrain a continued offense. (22 Cyc. 830.)
Equity will protect the rights of claimants to property to prevent disposition or destruction
thereof to their prejudice. (22 Cyc. 840, 993; Sierra Nevada Co. v. Sears, 10 Nev. 346.)
Appellant seeks to rely on the fact that the sale was void as to the creditors of the judgment
debtors, and that therefore the officer had a right to levy on the property.
38 Nev. 248, 250 (1915) Marshon v. Toohey
It is submitted that the allegations of the separate defense are insufficient to bring it within
section 3908, Revised Laws. The statute applies only to cases where an entire stock of
merchandise is sold for cash or credit. It might have been a transfer to the vendee of the
property involved for a debt, under execution, or an exchange; and unless it was a sale for
cash or credit, it was not a sale within the meaning of the law. (7 Words & Phrases, 6304;
Williamson v. Berry, 49 U. S. 495, 544; Butts v. Newman, 29 Wis. 640; Vail v. Strong, 10 Vt.
465; Chapman v. Hughes, 58 Pac. 298; State v. Austin, 23 South. 34.)
By the Court, Norcross, C. J.:
This is an appeal from an order refusing to set aside an injunction pendente lite.
Respondent instituted an action in equity to enjoin the appellant, as constable of Goldfield
township, from levying an execution upon certain personal property alleged to be owned by
respondent. Appellant was proceeding to levy under and by virtue of a writ duly issued by the
justice's court in and for Goldfield township to satisfy a judgment obtained in said court in a
case where Joe Shirley was plaintiff and Matt Rosenthal and Al Dilly, as partners, were
defendants. It is the contention of appellant in this case that the property levied upon and
attempted to be sold upon execution is the property of said defendants, Rosenthal and Dilly,
and not the property of the respondent, Marshon.
[1] It is alleged in the complaint in the injunction suit that to permit the levy of the writ of
execution would destroy the business of respondent in conducting a certain saloon and
dance-hall in the town of Goldfield, and would ruin his credit, and that he is entitled to
injunctive relief, for the reason that his injury cannot be estimated in damages in an ordinary
action at law. This contention of respondent was sustained by the court below, and we think it
finds support in the law. While it is the general rule, where property is claimed to be
wrongfully seized for execution, that the owner has an adequate remedy at law for damages,
an exception exists where it is shown that the business and credit of one not a party to the
original action would be so affected as to make it difficult or impossible to estimate the
injury in damages.
38 Nev. 248, 251 (1915) Marshon v. Toohey
that the business and credit of one not a party to the original action would be so affected as to
make it difficult or impossible to estimate the injury in damages. (Freeman on Executions, 3d.
vol. 3, sec. 437, p. 2347.)
[2] It is contended, however, upon the part of appellant, that the pleadings show that the
property in controversy is subject to levy, for the reason that the respondent purchased the
property in question from the defendants, Rosenthal and Dilly, and that the sale to respondent
was void as against the creditors of the latter under the provisions of Revised Laws, secs.
3908-3912, known as the bulk sales act.
It sufficiently appears from the pleadings that this act was not complied with in the sale of
the saloon and dance-hall made by Rosenthal and Dilly to respondent. If this contention is
correct, the order should be set aside, for respondent would not then be in position, we think,
to avail himself of the exception to the rule above announced, for his alleged title would
appear prima facie void under the statute.
We shall assume in this case that the act in question is valid, for it has not been
questioned, although the examination of the case which we have been required to make
disclosed a division of authority as to whether this character of legislation is constitutional.
The authorities upon both sides of the question will be found collated in the notes to Everett
Produce Co. v. Smith, 40 Wash. 566, 82 Pac. 905, 117 Am. St. Rep. 979, 2 L. R. A. n.s. 331,
5 Ann. Cas. 798; Young v. Lamieux, 79 Conn. 434, 65 Atl. 436, 20 L. R. A. n. s. 160, 129
Am. St. Rep. 193, 8 Ann. Cas. 452; Williams v. Preslo, 84 Ohio St. 328, 95 N. E. 900, Ann.
Cas. 1912c, 704. See, also, Off v. Morehead, 235 Ill. 40, 85 N. E. 264, 126 Am. St. Rep. 184,
20 L. R. A. n. s. 167, 14 Ann. Cas. 434; Re Paulis (D. C.) 144 Fed. 472.
The property seized in execution consisted in part of a stock of liquors, in part of certain
furnishings used in connection with the dance-hall such as curtains, chairs, tables, dressers,
rugs, bedroom supplies, and other articles of a similar character, in part of glassware and
other similar bar equipment, and $123.90 in money described in the complaint as
"proceeds from and at the said bar."
38 Nev. 248, 252 (1915) Marshon v. Toohey
similar bar equipment, and $123.90 in money described in the complaint as proceeds from
and at the said bar. The stock of liquors and the money derived from its sale we think
properly the subject of execution, as property, and the proceeds thereof transferred contrary to
the provisions of the statute and void as to the creditors of the former owners. The glassware,
bar fixtures, and furnishings of the dance-hall and saloon do not, we think, constitute a stock
or a portion of a stock of merchandise within the meaning of the statute. (Everett Produce
Co. v. Smith, supra; Albrecht v. Cudihee, 37 Wash. 206, 79 Pac. 628; Van Patten v. Leonard,
55 Iowa, 520, 8 N. W. 334; Kolander v. Dunn, 95 Minn. 422, 104 N. W. 371; Gallus v.
Elmer, 193 Mass. 106, 78 N. E. 772, 8 Ann. Cas. 1067.)
The order denying the motion to vacate the temporary injunction also continued the
injunction in force subject to the further order of the court. As the injunction may properly
be subject to modification, in accordance with the views here expressed, counsel for appellant
is not foreclosed from appropriate relief in the lower court.
The order appealed from is affirmed, subject to the right of appellant to apply for
modification thereof.
____________
38 Nev. 253, 253 (1915) State v. Huber
[No. 2152]
STATE OF NEVADA, Respondent, v. FRANK
HUBER, Appellant.
[148 Pac. 562]
1. HomicideEvidenceAdmissibility.
In a prosecution for murder, evidence that the deceased sent the witness an order upon defendant for a
certain amount, which defendant had not paid, was erroneously admitted; since it was immaterial, and
tended to prejudice the jury against defendant.
2. HomicideSelf-DefensePurpose of Attack.
If one makes an attack upon another for the purpose of committing a felony and wreaking his malice upon
the person attacked, and the person so attacked makes a counter attack and is slain, the plea of self-defense
is not available; but, where the original attack by accused was not with felonious intent, he may plead
self-defense.
3. HomicideEvidenceReputation of Deceased.
In a prosecution for murder, exclusion of evidence tending to show that deceased had the reputation of
being of a violent, turbulent, and dangerous disposition was erroneous, where defendant had made no
assault upon deceased, and where consequently the plea of self-defense was available.
4. Assault and BatteryHomicideSelf-DefenseAggressionAssault.
In a prosecution for murder, evidence held not to show that defendant made the first assault upon
deceased; an assault requiring an attempt to carry the intent to assault into execution by an overt act.
5. Criminal LawElementsAttempt to Commit Crime.
An act done with intent to commit a crime, and tending, but failing, to accomplish it, is an attempt to
commit that crime (citing 1 Words and Phrases, Attempt to Commit Crime).
6. Criminal LawOpinion EvidenceReputation.
A person's general reputation may not be established by the opinion of the witness, but by the reputation
he bears in the community in which he lives.
Appeal from the Fourth Judicial District Court, Elko County; E. J. L. Taber, Judge.
Frank Huber was convicted of murder in the first degree, and he appeals. Reversed.
James Dysart and J. M. McNamara, for Appellant:
The evidence in regard to a certain order drawn upon appellant by deceased, and sent
through the mail to witness Rutherford some time during the fall of 1911, was too remote,
and could in no way bind this appellant; and such testimony was not admissible under any
rule of evidence.
38 Nev. 253, 254 (1915) State v. Huber
too remote, and could in no way bind this appellant; and such testimony was not admissible
under any rule of evidence. This testimony was necessarily prejudicial to the defendant. (12
Cyc. 390; People v. Carpenter, 68 Pac. 1027; People v. Wilson, 59 Pac. 581; People v.
Arlington, 55 Pac. 1003; People v. Lynch, 55 Pac. 248.)
The ruling of the trial court in excluding the character evidence offered by appellant for the
purpose of proving that deceased was a violent, turbulent, disagreeable and dangerous man,
clearly deprived appellant of a substantial right, in that it not only lessened but practically
deprived him of his right to show self-defense. (21 Cyc. 908, 909; People v. Lombard, 17
Cal. 316.) Testimony as to the character of the deceased is always admissible where the issue
of self-defense is made. (Wigmore on Evidence, sec. 246; Jones on Evidence, vol. 1, sec.
156; Thompson on Trials, vol. 2, sec. 2160; State v. Thompson, 88 Pac. 583; State v. Jones,
139 Pac. 441, 446; State v. Shafter, 55 Pac. 526.)
Where a defendant claims to have acted in self-defense, any evidence tending to show that
he acted as a reasonable and prudent man would have acted under the circumstances is
competent. (People v. Powell, 25 Pac. 481, 486.) When it is doubtful whether or not the
homicide was committed with malice, or from a well-grounded apprehension of danger, the
defendant has a right to show the quarrelsome and dangerous reputation of the deceased.
(State v. Feeley, 3 L. R. A. n. s. 351, 373; State v. Pearce, 15 Nev. 188; 29 Cyc. 956; People
v. Young, 63 Pac. 837.)
In order to constitute one an aggressor, he must have provoked the difficulty with the
intent to either kill his adversary, do him great bodily harm, or afford a pretext for wreaking
malice upon the adversary. (1 Words and Phrases, 271; Foutch v. State, 95 Tenn. 711, 45 L.
R. A. 687; Smith v. State, 8 Ga. 402; Daniel v. State, 10 Ga. 261; Brown v. State, 58 Ga. 212;
Hash v. Com., 88 Va. 172; Cotton v. State, 31 Miss. 504; Radford v. Com., 5 S. W. 343;
Airhart v. State, 51 S. W. 214; Beard v. State, 81 S. W. 83; Carter v. State, 35 S. W. 378;
Johnson v. State, 10 S. W. 235; Allison v. U. S., 40 L. Ed. 395.)
38 Nev. 253, 255 (1915) State v. Huber
Testimony as to the good character of the defendant was admissible. (State v. McClellan,
17 Ann. Cas. 106.)
Geo. B. Thatcher, Attorney-General, E. P. Carville, District Attorney, and Chas. A.
Cantwell, Deputy District Attorney, for Respondent:
Mere remoteness of time is not alone sufficient to render testimony incompetent or
immaterial. There is nothing in the ruling or language of any of the five cases cited by
appellant that even remotely touches upon the point raised as to the admissibility of the
testimony of Rutherford.
On prosecution for homicide, evidence of the bad character of the deceased is irrelevant.
(Wharton's Criminal Evidence; State v. Wethers, 54 South. 290; State v. Pearce, 15 Nev.
188.)
One who commences an assault, which is resisted with violence, is not excused in going to
the extent of taking life in avoiding danger to his own life which arises by reason of the
violence of the party whom he has assaulted. Nor can it be denied that the authorities concur
to the effect that the rights of self-defense revive in favor of the original aggressor only after
he has abandoned his purpose and has withdrawn and clearly made known his desire for
peace to the other party. (1 McClain, Cr. Law, 310; Wharton, Cr. Law, 485, 486; Bish. Cr.
Law, 843, 865; State v. Spears, 46 La. Ann. 1524, 16 South. 467.)
Evidence that the deceased was of a violent and turbulent disposition was inadmissible and
immaterial, where the accused was the aggressor. (Winter v. State, 26 South. 949; Morrison
v. Com., 74 S. W. 277; State v. Napoleon, 28 South. 972; Campbell v. Territory, 125 Pac.
717; People v. Edwards, 41 Cal. 640; Gardner v. State, 17 S. E. 86.)
If the defendant in any way challenged the fight, and went on, he cannot afterwards
maintain that in taking his assailant's life he acted in self-defense. (Wharton's New Crim.
Law, secs. 613, 614, 615.) There is no right of self-defense where the defendant has
previously brought on the assault. (2 Thompson on Trials, sec.
Evidence of defendant's character means evidence of his general reputation.
38 Nev. 253, 256 (1915) State v. Huber
his general reputation. Witnesses are not, as a general rule, authorized to give the results of
their own personal experience and observation. (State v. Pearce, 15 Nev. 188.)
By the Court, Coleman, J.:
The appellant, who will hereafter be designated the defendant, was convicted of murder in
the first degree, and from a denial of the motion for a new trial and the judgment, appeals to
this court.
It appears that on the 20th of August, 1913, William Billings, the deceased, went to the
town of Mountain City, and after arriving inquired where the defendant could be found.
Being informed by one George Anderson that the defendant was in the house where the
defendant and his mother resided, the deceased, in company with said Anderson, proceeded
to the residence and made search for the defendant, and, failing to find him, went to a cabin a
short distance from the house, where defendant was asleep. Deceased awoke the defendant
and demanded of him payment of an alleged indebtedness of $25. Defendant insisted that he
did not owe the debt; whereupon deceased struck him in the face, and took the defendant by
the collar and led him to the defendant's barn in search of a saddle which the deceased said he
was going to take in payment of the indebtedness. The evidence tends to show that while in
the barn the deceased again assaulted the defendant, and, not finding the saddle at that place,
proceeded to the barn of one Rutherford in search of the saddle, where it was found and taken
by the deceased and put into his buggy. It appears that at no time did the defendant resist the
assaults of the deceased.
After having a meal and attending to some other matters, the deceased, in company with
his wife and little daughter, left Mountain City, driving in the direction of his home. The
defendant, shortly after the departure of the deceased, having in his possession a gun which
he had prior to the time deceased left, procured a horse, and, according to his theory, started
to the residence of a neighbor to get and return to his home a couple of horses which had
escaped from his possession.
38 Nev. 253, 257 (1915) State v. Huber
according to his theory, started to the residence of a neighbor to get and return to his home a
couple of horses which had escaped from his possession. It is also contended by the
defendantof which there is evidencethat the defendant made a practice of carrying a gun
when traveling around the community. On arriving at the home of one Stinton, a short
distance from Mountain City, the wife and daughter of the deceased got out of the buggy and
went into the house, the deceased proceeding to the barn, where, in company with T. B.
Stinton, he was unhitching the horses, when defendant rode up. Upon arriving at a point
about twenty steps from the barn, and while in the road, the defendant dismounted, and with
the shotgun under his arm walked a few steps ahead of the horse, which he was leading, and
turning to the deceased said: Billings, I want that saddle, and I want it right away. Deceased
pointed over his shoulder and said: There is your saddle, Jerry; there is your saddle. At this
time defendant held the stock of the gun under his arm; the muzzle of it being turned toward
the deceased. At this point the deceased walked at a medium gait towards where the
defendant was standing. The defendant demanded that the deceased stop when the deceased
was about fifteen steps distant from the defendant. The deceased, however, kept going
towards the defendant. Defendant again demanded that the deceased stop, but deceased
ignored his command, and continued on towards where the defendant was standing, and,
when he got within a few feet of the defendant, the defendant again demanded that the
deceased stop, but, instead of doing so, he made a lunge for the gun, whereupon defendant
stepped back a couple of steps, and, jerking the gun slightly to the side, fired; the discharge
killing the deceased.
[1] It is urged that the court erred in admitting in evidence, over the objection of the
defendant, certain testimony of one Rutherford, who gave evidence to the effect that the
deceased in 1911 sent the witness an order upon defendant for $25, and which the defendant
had not paid.
38 Nev. 253, 258 (1915) State v. Huber
not paid. It appears from the testimony of the witness Anderson, who was the only
eye-witness to most of the trouble in Mountain City, that the trouble at that place grew out of
this alleged indebtedness, which the deceased claimed to be due him, and which the
defendant steadfastly maintained he did not owe. From a reading of the entire record in this
case, we are unable to see that the testimony of Rutherford could throw any light upon what
transpired on the day of the homicide. The only effect it could have had, coming, as it did, at
a time when all that had transpired at Mountain City had been related, was to prove the
indebtedness, and thus prejudice the jury against the defendant. We are clearly of the opinion
that the court should have sustained the objection to the evidence offered.
[2] Error is also assigned to the giving by the court, over the objection of defendant, of the
state's requested instruction No. 25, which reads as follows:
The jury are instructed: That if you believe from the evidence, beyond a reasonable doubt,
that the defendant armed himself with a deadly weapon for the purpose of seeking the
deceased, and that the defendant then followed the deceased from Mountain City to the
Stinton ranch, and that the defendant there attacked the deceased with a deadly weapon, then I
instruct you that the defendant was the aggressor. And if you likewise find that the deceased
thereupon made a counter attack upon the defendant which was such as to excite the fears of
a reasonable man that the deceased was about to take the life of the defendant or do him great
bodily harm, still the defendant must be held to remain the aggressor, unless you shall
likewise find from the evidence that the defendant in good faith had declined further combat,
and had fairly notified the deceased, as a reasonable man, that he had abandoned the contest.
And if you should find that the circumstances were such, arising from such counter attack,
that the defendant could not so notify the deceased, the danger in which the defendant then
stood was brought upon himself by his own fault, and he cannot justify the killing of the
deceased under a plea of self-defense.
38 Nev. 253, 259 (1915) State v. Huber
deceased under a plea of self-defense. And I further instruct you that an attack is an opening
or commencing act of hostility.
It is urged by counsel for appellant that this instruction is defective, in that it does not
embody the element of the intent with which the alleged original assault was made by the
defendant, claiming that, if the defendant did not intend to commit a felony in making the
original attack, he was entitled to plead self-defense in killing the deceased.
The Supreme Court of Missouri, in the case of State v. Partlow, 90 Mo. 608, 4 S. W. 14,
59 Am. Rep. 31, reviews some of the cases in point which had been decided prior to the
rendition of that opinion, and says:
In all of these cases I have cited, and I might have cited a great cloud of witnesses' to
bear testimony to this well-established legal principle, the idea is made prominent that the
main feature in such cases is the intent with which the accused brought on the quarrel or
difficulty; if with no felonious intent, no harboring of malice, no premeditated purpose of
doing great bodily harm, or killing the person assaulted or with whom the quarrel is begun,
then the accused is not a murderer, let the result of the difficulty turn out as it will.
The Supreme Court of Appeals of Virginia, in the case of Hash v. Commonwealth, 88 Va.
194, 13 S. E. 405, uses the following language:
Horrigan and Thompson, in their cases in self-defense (page 227), in a note to Stoffer v.
State, 15 Ohio St. 47, 86 Am. Dec. 470, cited in State v. Partlow, 90 Mo. 608, 4 S. W. 14, 59
Am. Rep. 31, give an admirable summary of the authorities on this subject as follows: If he
[the slayer] provoked the combat or produced the occasion, in order to have a pretext for
killing his adversary, or doing him great bodily harm, the killing will be murder, no matter to
what extremity he may have been reduced in the combat. But if he provoked the combat, or
produced the occasion, without any felonious intent, intending, for instance, an ordinary
battery merely, the final killing in self-defense will be manslaughter only.' Here is a clear
recognition of the doctrine that, although the slayer provoked the combat, or produced
the occasion, yet, if it was done without any felonious intent, the party may avail himself
of the plea of self-defense.
38 Nev. 253, 260 (1915) State v. Huber
is a clear recognition of the doctrine that, although the slayer provoked the combat, or
produced the occasion, yet, if it was done without any felonious intent, the party may avail
himself of the plea of self-defense. In the case of State v. Partlow, supra, the learned judge,
delivering the opinion, cites, in support of this doctrine, State v. Lane, 26 N. C. 113; Reg. v.
Smith, 8 Car. & P. 160; Slaughter's Case, 11 Leigh, 681; 37 Am. Dec. 638; Murphy v. State,
37 Ala. 142; Adams v. People, 47 Ill. 376; State v. Hildreth, 31 N. C. 429, 51 Am. Dec. 364;
State v. Hogue, 51 N. C. 381; State v. Martin, 24 N. C. 101; Atkins v. State, 16 Ark. 568;
Cotton v. State, 31 Miss. 504; Stewart v. State, 1 Ohio St. 66; State v. Hill, 20 N. C. 629; and
2 Bish. Crim. Law, sec. 702, supra; and by way of enforcing this well-settled legal principle,
the learned judge makes this remark: Indeed the assertion that one who begins a quarrel or
brings on a difficulty with the felonious purpose to kill the person assaulted, and
accomplishing such purpose, is guilty of murder, and cannot avail himself of the doctrine of
self-defense, causes with it in its very bosom the inevitable corollary that, if the quarrel be
begun without a felonious purpose, then the homicidal act will not be murder. To deny this
obvious deduction is equivalent to the anomalous assertion that there can be a felony without
a felonious intent; that the act done characterizes the intent, and not the intent the act. The
bare statement of such a doctrine accomplishes its own ample refutation; a doctrine
inconsistent with its premises and illogical in its conclusion. In the light of this well-settled
doctrine, it is manifest that the trial court erred egregiously in saying to the jury that a man
cannot in any case justify the killing of another on the pretense of self-defense, unless he be
without fault in bringing the necessity of so doing upon himself. Recurring now to the rule
laid down by Bishop that, if the individual assaulted, being himself without fault, reasonably
apprehends death or great bodily injury to himself unless he kills the assailant, the killing is
justifiable, the inquiry presents itself: What fault' is it that will deprive a man of his plea of
justifiable self-defense?
38 Nev. 253, 261 (1915) State v. Huber
will deprive a man of his plea of justifiable self-defense? This question has already been
answered by the authorities cited. It is the fault' of seeking and directly bringing about the
occasion for the killing, limited, however, by the intention with which the occasion was
brought about. Inasmuch, therefore, as the right of a party accused of a felonious homicide to
avail himself of the plea of justifiable self-defense depends upon the intent with which he
provoked the difficulty, and inasmuch as it is the doctrine of the law that no man is to be
punished as a criminal unless his intent is wrong, and as the intent is a fact to be found by the
jury, then in every case where the evidence creates any doubt as to the character of the intent
the court should instruct the jury as to the distinction between perfect and imperfect defense,
as applicable to the particular circumstances attending the homicidal act of the accused.
(Meuly's Case, 26 Tex. App. 274, 9 S. W. 563, 8 Am. St. Rep. 477, and authorities cited.)
The Supreme Court of Tennessee, in Foutch v. State, 95 Tenn. 716, 34 S. W. 424, 45 L. R.
A. 690, uses the following language:
In order to make a man guilty of murder who is the aggressor' or in fault,' or who
provokes a difficulty' in which his adversary is killed, he must have provoked it with the
intent to kill his adversary, or do him great bodily harm, or to afford him a pretext for
wreaking his malice upon his adversary [citing cases]. In order to deny such party the right to
rely on the plea of self-defense, it must appear that he was the aggressor' or in fault,' or
provoked the difficulty' in such a way and with such intent as the law contemplates in the use
of these terms. It is not every aggression' which produces a difficulty that is an unlawful one
within the meaning of this phrase, nor is it every fault' which a man might commit that
precludes him from defending himself when violently assaulted or menaced, nor is it every
provocation of a difficulty' which robs him of the right of self-dense.
38 Nev. 253, 262 (1915) State v. Huber
Where a difficulty is intentionally brought on for the purpose of killing deceased, the fact
of imminent danger to the accused constitutes no defense; but when the accused embarks in a
quarrel with no felonious intent, or malice, or premeditated purpose of doing bodily harm or
killing, and under reasonable belief of imminent danger, he inflicts a fatal wound, it is not
murder but may be manslaughter. (Wallace v. U. S. 162 U. S. 466, 16 Sup. Ct. 859, 40 L. Ed.
1039.) See, also, Wharton on Homicide, sec. 198; State v. Partlow, 90 Mo. 608, 4 S. W. 14,
59 Am. Rep. 31; Adams v. People, 47 Ill. 376; People v. Hayes, 9 Cal. App. 301, 99 Pac.
388.
In a case where the defendant was alleged to have been the original aggressor, the Supreme
Court of Colorado uses the following language:
If, however, the wrongful intent or act was not felonious, but merely done with the intent
to commit a simple assault or a misdemeanor, and in the struggle thus brought on the
defendant kills his antagonist, while it is true he would not be excused or justifiedtherefore
not entitled to an acquittalyet the defense may properly be interposed as legitimate, and as
bearing upon the degree of the homicide, to aid the jury in determining whether it be murder
or manslaughter. (Boykin v. People, 22 Colo. 506, 45 Pac. 423.)
From the decisions cited and quoted from it appears to be the rule that, if one makes an
attack upon another for the purpose of committing a felony and of wreaking his malice upon
the person so attacked, and the person thus attacked makes a counter attack and is slain, the
plea of self-defense is not available; but, if such attack is not made with a felonious intent, the
plea of self-defense is available. We are of the opinion that the intent with which the
defendant made the alleged attack upon the deceased at the Stinton ranch is material, and
should have been covered by the instruction.
[3] Error is assigned to the ruling of the court in excluding evidence offered by defendant
to show that deceased had the reputation of being of a violent, turbulent and dangerous
disposition. The ruling of the learned trial judge was based upon the well-established rule
that self-defense is not available as a plea to a defendant who makes an assault for the
purpose of forcing a deadly issue, and thus, through his initiative, malice, and fraud,
creates a real or apparent necessity for the killing, and consequently the reputation of the
deceased for being of a turbulent, violent, and dangerous disposition is not material, and
should not go the jury.
38 Nev. 253, 263 (1915) State v. Huber
trial judge was based upon the well-established rule that self-defense is not available as a plea
to a defendant who makes an assault for the purpose of forcing a deadly issue, and thus,
through his initiative, malice, and fraud, creates a real or apparent necessity for the killing,
and consequently the reputation of the deceased for being of a turbulent, violent, and
dangerous disposition is not material, and should not go the jury. To enable us to determine if
the position of the trial court was sound, we must look to the facts immediately preceding and
surrounding the homicide, and for a complete understanding of the situation we quote the
material evidence, which is as follows:
Q. Now, at the time you first saw Jerry Huber, as you have testified, just what were you
doing, and just what was Mr. Billings doing? A. We were just leading the horses around from
the tongue; just turning around from the buggy.
Q. At the time you first noticed Jerry Huber was he on his horse? A. Yes, sir.
Q. Did he remain on his horse? A. No, sir.
Q. Where did he dismount? A. In the road.
Q. About how far was that from where you and Mr. Billings were standing? A.
Aboutoh, somewheres around seventeen steps, I guess. * * *
Q. Did you notice how the defendant held that shotgun at that time? A. Yes, sir.
Q. How? A. Held the stock of the gun under his arm. * * *
Q. What, if anything, did the defendant, Jerry Huber, do when he got off his horse? A.
Walked a few feet in front of him.
Q. In front of the horse do you mean? A. Yes, sir.
Q. Did he speak any words or make any motions, or do anything else at that time? A. Do
you mean after he walked up in front of his horse?
Q. No; at the time he walked up there. A. At the time he was walking up, well he was
walking along, and I never heard him say anything just then.
Q. What, if anything, did Mr. Huber do after walking those few steps? A. After a while
he turned around and says: 'Billings, I want that saddle, and I want it right away.'
38 Nev. 253, 264 (1915) State v. Huber
those few steps? A. After a while he turned around and says: Billings, I want that saddle, and
I want it right away.'
Q. At the time he spoke these words in what position was that gun held? A. It was held
towards us. Is that what you mean, which way it was pointing?
Q. No; that was not the purpose of the question. That would have been the next question.
I was asking what position the gun was held in by Mr. Huber. A. The stock of the gun was
held under his arm down to his side.
Q. And in what direction was the barrel pointing? A. Pointed towards Mr. Billings and
myself.
Q. Was there any reply made by Mr. Billings after those remarks addressed to him by Mr.
Huber? A. Yes, Sir.
Q. What was that reply? A. He pointed over his shoulder and says: There is your saddle,
Jerry; there is your saddle.'
Q. Now, at the time Jerry Huber made this request of Mr. Billings, and at the time Mr.
Billings made this answer to Jerry Huber, what, if anything was Mr. Billings doing? A.
Walking along by the side of me at the time Mr. Huber made the remark, and just passed in
front of me as he spoke.
Q. That is, Mr. Billings passed in front of you as he spoke to Jerry? A. Yes, sir.
Q. Then what, if anything, did Mr. Billings do next? A. Stepped back to my left side and
kept on going towards Mr. Huber.
Q. Did he walk clear down to where Mr. Huber was? A. He did, within a few feet.
Q. How fast was he going? A. Well, about a medium gait.
Q. By a medium gait do you mean a medium-gaited walk, or a medium-gaited run? A. A
medium-gaited walk.
Q. What, if anything, did Jerry Huber, the defendant, do while Mr. Billings was walking
towards him? A. Demanded him to stop.
38 Nev. 253, 265 (1915) State v. Huber
Q. How far was Mr. Billings from Jerry at the time Jerry demanded that he stop? A.
About fifteen steps.
Q. Did Mr. Billings stop. A. He did not.
Q. What did he do? A. Kept on going down towards Mr. Huber.
Q. After that did Jerry do anything while Mr. Billings was walking towards him? A. He
told him to stop again.
Q. How far was Mr. Billings from Jerry when that second request was made? A. About
halfway between himself and me.
Q. Did Mr. Billings then stop? A. He did not.
Q. On either of these occasions did he make any reply to Jerry? A. He did not.
Q. What did he do after this second request to stop? A. He kept on going towards Mr.
Huber.
Q. And then what did Jerry do, if anything? A. He did nothing.
Q. After Jerry had requested him to stop the second time, and when Mr. Billings
continued on towards Jerry, what, if anything, occurred? A. When he got within a few feet of
him Mr. Huber told him to stop again, and just as he told him to stop he made a lunge for the
gun.
Q. Who made the lunge for the gun? A. Mr. Billings.
Q. What, if anything, did Jerry do when Mr. Billings made the lunge for the gun? A. He
stepped back a couple of short steps.
Q. Then what, if anything, happened? A. When Mr. Billings made the lunge for the gun
he threw his right hand up, and Mr. Huber jerked it to the side slightly, and then drew it back
and fired.
Q. Jerked what to the side? A. Jerked the shotgun at the side slightly.
Q. How many shots were fired? A. One.
Q. How do you know that a shot was then fired? A. Because I heard it and saw the blaze.
Q. Then what, if anything, did Mr. Billings do? A. He dropped.
[4] It now becomes necessary for us to determine if defendant made an assault upon the
deceased; for, if he did not, the rule invoked by the learned trial judge is not applicable.
38 Nev. 253, 266 (1915) State v. Huber
defendant made an assault upon the deceased; for, if he did not, the rule invoked by the
learned trial judge is not applicable. An assault is defined by our statute to be:
An unlawful attempt, coupled with a present ability, to commit a violent injury on the
person of another. (Section 6412, Rev. Laws, 1912.)
An assault is an attempt to offer, with force and violence, to do a corporeal hurt to
another. (1 Bac. Abr. 371.)
An assault is an attempt with force and violence to do a corporeal hurt to another.
(Russell on Crimes, 1019.)
An assault is an attempt to offer, with unlawful force or violence, to do a corporeal hurt
to another. (Clark & Mar. on Crimes, 2d ed. sec. 197.)
An assault is any attempt or offer, with force or violence, to do a corporeal hurt to
another, whether from malice or wantonness, with such circumstances as denote, at the time,
an intention to do it, coupled with a present ability to carry such intent into effect. (3 Cyc.
1020; see, also, 2 R. C. L. 525.)
An assault is an intentional attempt to strike within striking distance, which fails of its
intended effect, either by preventive interference, or by misadventure. (Lane v. State, 85 Ala.
12, 4 South. 730.)
An assault is made by one who in striking distance of another attempts to strike at him or
hit him. An assault is an attempt to strike. The battery is the consummated act. (Com. v.
Brungess, 23 Pa. Co. Ct. R. 13, 14.)
An assault is an apparent attempt, by violence, to do corporeal hurt to another. (Whart.
Crim. Law, 11th ed. vol. 2, sec. 797.) It must also, to adopt the language of the late Judge
Gaston, amount to an attempt; for a purpose to commit violence, however fully indicated, if
not accompanied by an effort to carry it into immediate execution, falls short of an actual
assault. * * * It is difficult, in practice, to draw the precise line, which separates violence
menaced from violence begun to be executed; for until the execution of it is begun there
can be no assault.'" {Id. sec.
38 Nev. 253, 267 (1915) State v. Huber
executed; for until the execution of it is begun there can be no assault.' (Id. sec. 799.)
An assault is an attempt to offer to do another personal violence without actually
accomplishing it. A menace is not an assault. * * * Holding a gun in a threatening position,
without any attempt to use it, or intention to do so, unless first assaulted by the adversary, is
not an assault.' (Blackwell's Case, 9 Ala. 79.) Drawing a pistol, without presenting or cocking
it, is not an assault, as was decided in Lawson v. State, 30 Ala. 14. (Johnson v. State, 35 Ala.
365.)
To constitute an assault with a gun or pistol, it is necessary that the gun or pistol should
be presented at the party charged to be assaulted, within the distance to which the gun or
pistol may do execution. Roscoe on Criminal Evidence, top page 286, says: There must be
an actual presenting of the gun or pistol to make out the assault.' (Tarver v. State, 43 Ala.
354.)
In order to constitute an assault there must be something more than a mere menace. There
must be violence begun to be executed. (People v. Yslas, 27 Cal. 633.)
[5] Since an attempt is an essential element in an assault, we must ascertain what
constitutes an attempt.
An act done with intent to commit a crime, and tending but failing to accomplish it, is an
attempt to commit that crime. (Rev. Laws, sec. 6291; 12 Cyc. 177; 1 Words and Phrases, p.
622.)
This court, in State v. Lung, 21 Nev. 209, 28 Pac. 237, 37 Am. St. Rep. 505, said:
The overt act which constitutes an attempt must be one which manifest an intention to
commit the crime.
Let us look at the situation. Defendant got off his horse, and walking ahead of the horse,
held the stock of the gun under his arm, and when he turned in the direction of the deceased
and asked him about the saddle the stock of the gun was still under his arm and the barrel
pointing in the direction of Billings and the witness. He did not, so far as the evidence shows,
ever have his hand on the trigger, and certainly did not single out the deceased and aim the
gun at him. The defendant made no demonstration whatever, so far as we can see, toward
making an assault.
38 Nev. 253, 268 (1915) State v. Huber
no demonstration whatever, so far as we can see, toward making an assault. In the case of
State v. Smith, 10 Nev., it appears on page 116 of the report that the defendant cocked his
gun, put it to his shoulder, and advanced upon the deceased. This was clearly an overt act.
There was nothing of the kind in this case.
We conclude from the authorities that an assault is more than a mere menace. There may
be an intention to commit an assault, there may be preparation, and there may be a menace;
but these are not enough. There must be an effort put forth to carry the intention into
execution; there must be an over act. Did the defendant put forth an effort to assault the
deceased before he started to walk toward the defendant? Defendant had the loaded gun;
nothing interfered to prevent defendant's shooting; there was no misadventure. If defendant,
armed as he was, had made an effort to shoot, and there being no interference or
misadventure, it is clear that he could have shot. We are of the opinion that the most it can be
said the defendant did, prior to the time when deceased made an effort to get the gun, was to
menace the deceased. The evidence as to the reputation of the deceased for being of a violent,
turbulent, and dangerous disposition should have been admitted.
[6] Error is assigned to the giving by the court of the state's requested instruction No. 38,
which reads as follows:
The jury are instructed: That, while evidence of the general reputation of the defendant in
and about the neighborhood in which he lived at or about the time of the commission of the
alleged offense is admissible, and is a circumstance to be considered by the jury in connection
with all the other facts in the case, the opinion or opinions of individual witnesses as to the
character of the defendant are not to be considered for the purpose of proving the existence of
or the character of his general reputation; and in this case evidence of the character last
mentioned should not be considered by the jury in determining any issue of this case.
This instruction was given for the purpose of reaching some evidence that was given by
the defense, and of laying down the rule that a man's general reputation cannot be
established by the opinion of the witness, but by the reputation he bears in the
community in which he lives.
38 Nev. 253, 269 (1915) State v. Huber
some evidence that was given by the defense, and of laying down the rule that a man's general
reputation cannot be established by the opinion of the witness, but by the reputation he bears
in the community in which he lives. It was clearly right. (16 Cyc. 1275.)
While there are numerous other assignments, we do not deem it necessary, in view of the
rulings made, to pass upon them.
It is ordered that the judgment of the lower court be reversed.
____________
38 Nev. 269, 269 (1915) State v. Washoe County Comm'rs
[No. 2174]
STATE OF NEVADA, Ex Rel. RENO SCHOOL DISTRICT No. 10, Petitioner, v. BOARD
OF COUNTY COMMISSIONERS OF WASHOE COUNTY, Respondent.
[149 Pac. 191]
1. Schools and School DistrictsTaxesAnnual Levy.
Where the board of county commissioners had complied with Revised Laws, sec. 3618, requiring them,
on or before the first Monday of March of each year, to fix the rate of county taxes for such year, designating
the number of cents on each hundred dollars, and levy the state and county taxes on the taxable property, it
was an ultimate act in pursuance of that section and sections 3762, 3763, relating to their duties to levy
annually, such statutes contemplating but one annual levy; consequently mandamus would not lie to compel
a levy under the subsequently enacted statute of March 9, 1915 (Stats. 1915, c. 78), permitting the county
commissioners, in counties in which no high school is located, to levy a county tax for high-school purposes
for the benefit of any district high schools complying with certain conditions, the proper construction of such
act being that the levy should be made at the time when the county levy is regularly made.
Original Proceeding in mandamus to compel the respondent to levy a tax for certain school
purposes. Writ denied.
William P. Seeds, for Relator:
The provision of section 3618, Revised Laws of Nevada, requiring the county
commissioners to fix the rate of county taxes on or before the first Monday of March each
year, is directory.
38 Nev. 269, 270 (1915) State v. Washoe County Comm'rs
each year, is directory. (Cooley on taxation, 3d ed. 486, and note 2, p. 487; Wingate v. Ketner,
35 Pac. 591; Sharpe v. Engle, 39 Pac. 384; School Dist. v. Board, 122 pac. 520; Walker v.
Edmons, 47 Atl. 867; Coles County v. Allison, 23 Ill. 383; Tuohy v. Chase, 30 Cal. 525; Odd
Fellows Bank v. Quillen, 11 Nev. 109.)
E. F. Lunsford, District Attorney, and Geo B. Thatcher, Attorney-General, for Respondent:
Where a statute prescribes a time for the levying of taxes, a levy at any other time is
invalid. (Martin v. McDiarmid, 55 Ark. 213, 17 S. W. 877; St. Louis R. Co. v. Thornton, 86
S. W. 852; Berger v. Lutterloh, 68 S. W. 37; Clark v. Town of Noblesville, 44 Ind. 83;
Gamble v. Witty, 55 Miss. 26; Beard v. Supervisors, 51 Miss. 542; Smith v. Nelson, 57 Miss.
138; Stovall v. Connor, 58 Miss. 138; Beck v. Allen, 58 Miss. 143; Harris v. Stockett, 58
Miss. 825; State v. Manhattan S. M. Co., 4 Nev. 318; Hallo v. Helmer, 12 Neb. 87, 10 N. W.
568; 45 Cent. Dig., sec. 492.)
By the court, McCarran, J.:
This is an original proceeding in mandamus, instituted by relator to compel respondent to
levy a tax against the taxable property in Washoe County, in compliance with an act of the
legislature of 1915, entitled An act to authorize county commissioners in counties not
having high schools, to aid district high schools under certain conditions, and other matters
properly connected therewith, approved March 9, 1915 (Stats. 1915, c. 78), which act is in
part as follows:
Section 1. In any county in which no county high school is located, the county
commissioners shall levy a county tax for high school purposes of not less than ten (10) cents
on the hundred ($100) dollars of assessed valuation of the county for the benefit of any
district high school or schools that comply with the following conditions:
1. That the said high school or schools shall have standard courses in commercial work or
manual arts or domestic arts, or standard courses in agriculture; "2.
38 Nev. 269, 271 (1915) State v. Washoe County Comm'rs
2. That the board of school trustees of the district or districts having high schools as
described in paragraph 1 of these conditions shall each have levied a special district tax of not
less than fifteen(15) cents on the hundred ($100) dollars of the assessed valuation.
3. That the board of school trustees of each district interested shall have passed a
resolution opening their high school to all properly qualified students of the county.
Pursuant to the foregoing act, Reno School District No. 10, through its board of school
trustees, passed a resolution as follows:
Whereas, Reno School District No. 10, in the County of Washoe, Nevada, has for a
number of years last past offered to all students of said county of Washoe, full and equal
privileges with the students of said school district to its high school; and whereas, the
legislature recently passed An act to authorize county commissioners in counties not having
high schools, to aid district high schools under certain conditions, and other matters properly
connected therewith,' approved March 9, 1915; and whereas, it is the desire of said Reno
School District No. 10 to avail itself of all the privileges and benefits of said act; and
whereas, said Reno High School for several years last past, and is now, and intends to in the
future, maintain standard courses in commercial work and in the manual and domestic arts:
Now, therefore, be it resolved by the board of trustees of Reno School District No. 10, that
the high school in said school district shall be and the same is hereby open to all properly
qualified students of said county, and that the said board of trustees do and perform any and
all acts necessary to fully comply with and carry into effect this resolution.
Dated March 22nd, 1915.
Thereafter, and on the same date, to wit, March 22, 1915, the relator presented to
respondent, the board of county commissioners of Washoe County, an instrument in the
nature of a request, as follows:
To the County Commissioners of Washoe County: Whereas, in Washoe County, Nevada,
there is no county high school; and whereas {1) the Reno High School of said Washoe
County has maintained, and will continue to maintain, standard courses in commercial
work and in the manual and domestic arts; and, whereas {2) the board of school trustees
of the Reno public schools has directed the levy of a special district tax of more than
fifteen cents on the hundred dollars of the assessed valuation; and whereas {3) the said
board of trustees of Reno School District No.
38 Nev. 269, 272 (1915) State v. Washoe County Comm'rs
high school; and whereas (1) the Reno High School of said Washoe County has maintained,
and will continue to maintain, standard courses in commercial work and in the manual and
domestic arts; and, whereas (2) the board of school trustees of the Reno public schools has
directed the levy of a special district tax of more than fifteen cents on the hundred dollars of
the assessed valuation; and whereas (3) the said board of trustees of Reno School District No.
10 has passed a resolution opening their high school to all properly qualified students of
Washoe County: Be it therefore resolved by said board of trustees of Reno School District
No. 10, in pursuance of the provisions of assembly bill No. 58, introduced by Mr. Schmidt of
Nye County, and which has since passed both houses of the Legislature and been duly signed
by the Governor, that the county commissioners of Washoe County, Nevada, are hereby
notified that a tax of ten cents on the hundred dollars of the assessed valuation of the county
must be levied for the benefit of the Reno and Sparks high schools in Washoe County.
Board of Trustees, Reno School District No. 10.
By Robert M. Price, President.
By Theo. W. Clark, Clerk.
Respondent having refused to comply with the request of relator as set forth above, this
proceeding was instituted to compel respondent to act pursuant to such request.
Section 3618 of our Revised Laws, being section 2 of an act entitled An act to provide
revenue for support of the government of the State of Nevada, is as follows:
The board of county commissioners of each county shall, on or before the first Monday of
March, of each year, fix the rate of county taxes for such year, designating the number of
cents on each hundred dollars of property levied for each fund; and shall levy the state and
county taxes upon the taxable property of the county.
The answer of respondent sets forth, and in this respect it is admitted, that respondent, in
compliance with the foregoing statute (3618), fixed the rate of county taxes for the year 1915
on the 1st day of March, 1915, which was the first Monday in that month.
38 Nev. 269, 273 (1915) State v. Washoe County Comm'rs
for the year 1915 on the 1st day of March, 1915, which was the first Monday in that month.
The act under which relator seeks to bring about the additional levy of 10 cents did not
become a law until March 9, 1915; and the resolution opening the Reno High School to all
properly qualified students of the county was not passed by the board of school trustees of
Reno School District No. 10 until March 22, 1915, on which same day demand was made by
relator upon respondent for the additional levy.
It is the contention of relator that section 3618, Revised Laws, supra, is not mandatory, but
is directory only, and a number of authorities are cited in support of this contention. Counsel
for respondent takes the contrary position and cites a number of authorities in support of the
opposite view. The authorities are not in harmony, but we think it unnecessary to determine
the question.
Whether the provisions as to the time prescribed for making the levy for county taxes are
directory or mandatory we think immaterial in this case. It is admitted that the board of
county commissioners of Washoe County met on the first Monday of March, and then and
there fixed the tax rate for the fiscal year for that county. This was an ultimate act on the part
of the board, done pursuant to the direction of section 3762, 3763, and 3618. The law under
which and by reason of which relator seeks to change that levy was not in existence of the
first Monday of March, and hence could not have been considered or contemplated or
provided for by the board of county commissioners when, pursuant to this statue, they fixed
the rate for the fiscal year. Whatever might be said as to the right of the board of county
commissioners to change the levy when, by reason of inadvertence or mistake, they had failed
to make a proper pursuant to laws then in existence, such argument cannot avail in this
instance. The levy, as fixed by the board of county commissioners on the first Monday of
March, in so far as the contention of either party here is concerned, met all the requirements
of the then existing laws, and was not subject to any challenge or objection on the ground of
inadequacy to meet the county needs as they then existed, nor was the law subject to any
other objection that comes to our knowledge.
38 Nev. 269, 274 (1915) State v. Washoe County Comm'rs
inadequacy to meet the county needs as they then existed, nor was the law subject to any
other objection that comes to our knowledge. Section 3762, Revised Laws, being section 150
of the revenue act above referred to, is as follows:
The board of county commissioners in each county of this state are hereby authorized and
empowered to levy annually, on or before the first Monday in March, an ad valorem tax for
county purposes not exceeding the sum of two dollars on each one hundred dollars value of
taxable property in the county and such special taxes as may be authorized and required by
law. * * *
Section 3763, Revised Laws, being section 151 of the revenue act, is as follows:
In making the annual levy the board shall designate the number of cents levied for each
particular purpose, and shall add thereto the amount levied by law for state purposes. They
shall cause said state and county levies to be entered on the records of their proceedings, and
shall direct their clerks to deliver a certified copy thereof to the auditor, assessor and
treasurer, each of whom shall file said copy in his office.
In each of these sections above set forth, the statute refers to an annual levy, and
prescribes, by direction at least, the time within which such annual levy shall be fixed and
declared. As to whether or not the board of county commissioners could vacate this levy
when once declared, if for some reason, which in their judgment would inure to the best
interests of their county, they saw fit so to do, is not before us; nor are we to determine in this
proceeding whether or not the annual levy called for by the sections of the statue would be
valid if made at a later time. The statute, in our judgment, contemplates but one annual levy,
and the contemplation of the statute in this respect is met when the board of county
commissioners fixed the rate to meet the requirements of the county pursuant to the laws
existent at the time at which it is made; and the levy thus made to meet the county
requirements, pursuant to existing laws, becomes a final levy, except in so far as it may be
changed by the board of equalization, if, in their judgment, such change be necessary,
either to meet the requirements of the county or to obviate the collection of a sum of
money in excess of county needs.
38 Nev. 269, 275 (1915) State v. Washoe County Comm'rs
becomes a final levy, except in so far as it may be changed by the board of equalization, if, in
their judgment, such change be necessary, either to meet the requirements of the county or to
obviate the collection of a sum of money in excess of county needs. (Rev. Laws, sec. 3818;
State ex rel. Shaughnessy, v. Boerlin, 38 Nev. 39, 144 Pac. 738.)
There is nothing in the statute enacted by the legislature of 1915 which would warrant us
in regarding the statute as being retrospective in its effect. This is at least true to the extent
that it could not, in our judgment, operate to compel the tax-levying power to vacate its final
levy, made at a time prior to the existence of this statute, and which levy, so far as the record
here discloses, was not invalid or objectionable for any reason.
It will be observed that the act of March 9, 1915, in relation to district high schools,
provides for a permanent annual tax upon the property of the county, and thereafter must
necessarily form a part of the total county tax rate. The act is silent as to when this tax shall
be levied, and, in the absence of any requirement that it shall be levied at a time different than
the time when other county taxes shall be levied, we think the only proper construction to be
placed on the act is that the levy shall be made at the time when the county levy is regularly
made, following a compliance with the law upon the part of a district high school, making the
levy of such a tax incumbent upon the board of county commissioners. Had it been the
intention that the first levy should be made immediately upon the board of county
commissioners being advised that a district high school had complied with the act, it would
have been very easy for the legislature to have said so as it did in section 140 of the general
school law (Rev. Laws, sec. 3379) where upon notification by the clerk of the board of
school trustees that certain action has been taken, the board of county commissioners are
required to levy a special district tax. The fact that it is by the statute left optional with a
district high school when, if at all, it may comply with the law may account for the absence of
a provision requiring the first levy to be made upon notification that the district had
complied with the law.
38 Nev. 269, 276 (1915) State v. Washoe County Comm'rs
be made upon notification that the district had complied with the law. A district might, under
the law, comply with the statute at a time when such a levy, if it had to be made immediately
following the action of the board of school trustees, might cause great inconvenience or
confusion in the collection of taxes. The statute being silent as to when the first levy shall be
made, we think, in view of the other revenue laws in pari materia, it should be made the first
time thereafter when the tax levy is made for county purposes. An act entitled An act in
relation to levying and assessing taxes for state and county purposes, approved March 19,
1891 (Rev. Laws, sec. 3818, cited supra) provides:
All state and county taxes required to be levied by boards of county commissioners of the
several counties of this state in pursuance of the revenue laws of this state, shall hereafter be
levied by such boards of county commissioners on or before the first Monday of March of
each year. * * *
While we are of the opinion that the legislature, by a specific statutory provision, might
have required the county commissioners to have levied the tax in question at a time
subsequent to that prescribed in the general revenue laws, for levying state and county taxes,
absence of such specific direction will not require the board to levy such tax prior to the time
for the next regular tax levy.
The writ as prayed for will be denied.
It is so ordered.
____________
38 Nev. 277, 277 (1915) Yori v. Phenix
[No. 2157]
MARIA YORI, Respondent, v. GEORGE S. PHENIX,
Appellant.
[149 Pac. 180]
1. MortgagesDeed Absolute in Form.
Under civil practice act, sec. 576 (Rev. Laws, sec. 5518), providing that a mortgage shall not be deemed
a conveyance, so as to enable the owner of the mortgage to take possession without foreclosure and sale, a
deed absolute in form, but given as security for a debt, is a mortgage, and will be regarded in equity as
such: a mortgage not being an alienation, but mere security for a debt.
2. Landlord and TenantUnlawful DetainerActionsDefenses.
Under Const. art 6, sec. 14, declaring that there shall be but one form of civil action, in which law and
equity may be administered, and civil practice act, sec. 1 (Rev. Laws, sec. 4943), providing that there shall
be but one form of civil action for the enforcement or protection of private rights, and section 559 (section
5501), providing that there shall be but one action for the recovery of any debt or the enforcement of any
right secured by a mortgage or lien, and section 576 (section 5518), declaring that a mortgage shall not be
deemed a conveyance, and section 661 (section 5603), declaring that the provisions of this act relative to
civil actions, appeals, and new trials shall apply to proceedings in forcible entry and detainer, a defendant
in an action under section 646 (section 5588), for unlawful detainer may show the nonexistence of the
relation of landlord and tenant essential to the maintenance of the action, and may show that an instrument
in form a lease was a part of another instrument, and that the two constituted a mortgage, and thereby
defeat the action.
3. Landlord and TenantUnlawful DetainerStatutory Provisions.
The purpose of the unlawful detainer statutes is to afford a summary remedy to landlords where the
relationship of landlord and tenant exists, and a mere prima facie showing of the existence of the relation
does not preclude defendant from showing facts establishing the nonexistence of the relation.
4. Landlord and TenantDisputing Landlord's TitleUnlawful DetainerDefenses.
The rule that a tenant cannot dispute his landlord's title does not apply to a defendant in unlawful
detainer, seeking to show the nonexistence of the relation of landlord and tenant.
Appeal from Second Judicial District Court, Washoe County; A. N. Salisbury, Judge.
Action by Maria Yori against George S. Phenix. From a judgment for plaintiff, defendant
appeals.
38 Nev. 277, 278 (1915) Yori v. Phenix
a judgment for plaintiff, defendant appeals. Reversed, and remanded for new trial.
Harwood & Springmeyer, for Appellant.
The underlying principle in forcible entry, regardless of the rights of the parties, is
preservation of peace and good order; in unlawful detainer, the right of possession is the very
thing to be litigated. (13 Am. & Eng. Ency. Law, 2d ed. 753, 756; Beck v. Glenn, 69 Ala. 121;
Doty v. Burdick, 83 Ill. 473; Rabe v. Eyler, 48 Am. Dec. 763; Forsythe v. Bullocks, 74 N. C.
135; 19 Cyc. 1145, 1164; Taylor, Landlord and Tenant, pars. 707, 717; Lachman v. Barnett,
16 Nev. 154; Fitchett v. Henley, 31 Nev. 326.)
The California cases relied upon by the trial court are not authority. (Bostick v. Mahoney, 74
Cal. 239; Knowles v. Murphy, 107 Cal. 107; Fish v. Benson, 71 Cal. 437; Rev. Laws, sec.
5501; Peralta v. Ginochio, 47 Cal. 259.)
There is no estoppel where the relation of landlord and tenant is denied. (Franklin v.
Merida, 35 Cal. 558; Smith v. Smith, 16 S. W. 637.)
Enacting of express statute in some states does not affect the rule of pleading and proof.
(N. Y. Code C. C., Sec. 2245; Rev. Laws, sec. 5595; Johnson v. Chely, 43 Cal. 299; Reitze v.
Humphreys, 125 Pac. 522; Hamill v. Bank, 45 Pac. 411; Brown v. Burdick, 25 Pa. St. 260;
Mattox v. Helm, 15 Am. Dec. 64.)
Nevada is not bound by California construction of the unlawful detainer act. (36 Cyc.
1156; Oleson v. Wilson, 53 Pac. 372, 63 Am. St. Rep. 639.)
The district court was without jurisdiction, as is this court. (McDonald v. Stiles, 54 Pac.
487.)
The rule that the tenant cannot deny his landlord's title, taken at its face value, is supported
by many authorities, but it is qualified, at least in some jurisdictions, to the effect that where
the tenant did not acquire possession by virtue of the lease, he may deny the landlord's title.
(Johnson v. Chely, 43 Cal. 299; Tewksbury v. Magraff, 33 Cal. 237; Franklin v. Merida, 35
Cal. 558.)
38 Nev. 277, 279 (1915) Yori v. Phenix
Charles H. Burritt and Summerfield & Richards, for Respondent:
A person who, while in possession of real estate, executes a statutory deed of warranty to
another, and still remains in possession, even without a lease, holds possession for the
grantee, becomes a tenant at the will of the grantee, and is estopped by his deed from setting
up an independent title in himself. (Blake v. O'Neal, 16 L. R. A. n. s. 1147.)
Unlawful detainer in Nevada is a summary proceeding, taking the place of an action of
ejectment, abolished as between landlord and tenant. In case of a written lease, and in the
absence of allegations of fraud, mistake, etc., in the procurement and execution of the lease,
the only questions to be litigated are: Was the lease executed? Has the term expired? Does the
lessee hold over against the will of the lessor and after demand for possession made and
refused? (24 Cyc. 1418.)
In an action under our unlawful detainer statute, equitable defenses cannot be pleaded or
introduced. (Perkins v. Barnes, 3 Nev. 357; Lucich v. Medin, 3 Nev. 99; Brady v. Husby, 21
Nev. 433; South End M. Co. v. Tinney, 22 Nev. 19.)
In unlawful detainer, equitable defenses cannot be pleaded or introduced. In suits between
landlord and tenant, claim that deed given was intended as a mortgage is an equitable
defense, and cannot be pleaded or introduced as a defense in unlawful detainer proceedings.
The defendant in such cases must resort to another and independent suit. (24 Cyc. 1423;
Cottrell v. Moran, 138 Mich. 410; 32 Cent. Dig. secs. 1211-1276; Felton v. Millard, 61 Cal.
540; Knowles v. Murphy, 107 Cal. 107; Rev. Laws, sec. 5514.)
Title, or right of possession under color of title, cannot be tried under our statutes in actions
of unlawful detainer between landlord and tenant. (Peacock v. Leonard, 6 Nev. 84; Lachman
v. Barrett, 16 Nev. 154; Paul v. Armstrong, 1 Nev. 70; Hoopes v. Meyer, 1 Nev. 336;
Schroeder v. Franklin, 10 Nev. 355; Fitchett v. Henley, 31 Nev. 129; Phenix v. Bijelich, 30
Nev. 259
38 Nev. 277, 280 (1915) Yori v. Phenix
Schroeder v. Franklin, 10 Nev. 355; Fitchett v. Henley, 31 Nev. 129; Phenix v. Bijelich,
30 Nev. 259.)
Appellant is estopped from denying respondent's title. The general doctrine of estoppel
applies fully to the case at bar. (24 Cyc. 881-949; 17 Cyc. 622, et seq.; Hatwell v. Black, 48
Ill. 301; Stewart v. Murray, 13 Minn. 426; Sawyer v. Sargent, 7 Pac. 120; Tilyon v. Reynolds,
108 N. Y. 558; Bigelow on Estoppel, 6th Ed. 547-553; Jones on Landlord and Tenant, secs.
682-697; Jones on Evidence, sec. 284.)
Upon a review of the pleadings and evidence, the attempt of the appellant to repudiate the
relation of landlord, which, admitting the execution of the lease, in the absence of pleading
fraud in its procurement and execution, precludes the additional matter pleaded as a defense,
and renders his attempted denial of the relation of landlord and tenant under his written lease
noneffective. Attempt to deny by parol the effect of the lease cannot be allowed in this action
of unlawful detainer, and there are no facts stated in the answer upon which to base
defendant's claim of ownership and title of the demised premises. (Hoopes v. Meyer, 1 Nev.
366; Fitton v. Hamilton City, 6 Nev. 519; Lachman v. Barrett, 16 Nev. 154; Fitchett v.
Henley, 31 Nev. 326; Felton v. Millard, 81 Cal. 540; Knowles v. Murphy, 107 Cal. 107;
Bingham v. Thompson, 4 Nev. 240; Pierce v. Traver, 3 Nev. 531.)
The quit-claim deed of August 11, 1913, from defendant to plaintiff, purporting to convey the
premises demised in the lease of the same date from plaintiff to defendant, was an offer of the
defendant, upon the presentation of his proof, and was properly excluded. (Felton v. Millard,
81 Cal. 540; Knowles v. Murphy, 107 Cal. 107.)
By the Court, Norcross, C. J.:
This is an action for the restitution of certain real property in the county of Washoe,
alleged in the complaint to have been leased by respondent to appellant. The answer denied
that the appellant entered or was in possession of the property under and by virtue of a lease.
38 Nev. 277, 281 (1915) Yori v. Phenix
For a further and separate defense to the cause of action alleged in respondent's complaint,
appellant alleged that a certain instrument, in form a lease, in which the respondent was
named as lessor and the appellant as lessee, was in fact a part of a transaction in which the
appellant executed a deed for the premises in controversy to the respondent and the
respondent executed the lease in question to appellant; that the said instruments constituted
security for money loaned, and were in fact and in legal effect a mortgage; that the relation of
landlord and tenant did not exist between respondent and appellant. Upon the trial the court
refused to permit appellant to offer proof to establish the defense set up in his answer.
Judgment was entered for the plaintiff, and defendant appeals.
[1-2] The question presented for determination, which is of first impression in this court,
goes to the correctness of the ruling of the trial court in refusing to entertain proof of the
allegations contained in defendant's answer. The action is brought under the provisions of our
civil practice act, which in section 646 (Rev. Laws. sec. 5588) provides:
A tenant of real property for a term less than life, is guilty of * * * unlawful detainer,
under certain enumerated conditions thereafter specified.
It is contended by counsel for respondent, and it was so held by the court below, that title
to property cannot be determined in an action in unlawful detainer. Authorities are cited,
particularly from California, holding that a defense such as was sought to be interposed in the
case at bar will not be considered in such an action. While entertaining the highest respect for
the decisions of our sister state, California, we are not persuaded, upon an examination of
those authorities, that they are founded upon sound reasoning. What is known as an action in
unlawful detainer, designed to afford to a landlord a summary remedy for the recovery of
demised premises, was unknown to the common law. (Taylor, Landlord and Tenant, sec.
713.) In the common-law actions of forcible entry and forcible detainer, it has universally
been held that title to property cannot be an issue in such actions.
38 Nev. 277, 282 (1915) Yori v. Phenix
entry and forcible detainer, it has universally been held that title to property cannot be an
issue in such actions. Those actions were designed to maintain the peace and afford a remedy
even against an owner who acquired possession of property by force. Force is the gist of the
action in forcible entry or forcible detainer. Such is not the case in the summary remedy
provided by statute to aid a landlord where the tenant is guilty of acts constituting what is
styled an unlawful detainer. An action for unlawful detainer may only be maintained under
our statute where the relationship of landlord and tenant exists or existed between the parties.
No good reason suggests itself why proof of a state of facts, showing the nonexistence of such
relation, may not be pleaded and shown as a defense, even though such pleading and proof
may incidentally involve the question of title.
By section 559 of the civil practice act (Rev. Laws, sec. 5501) it is provided:
There shall be but one action for the recovery of any debt, or for the enforcement of any
right secured by mortgage or lien upon real estate, or personal property, which action shall be
in accordance with the provisions of this chapter.
By section 576 of the civil practice act (Rev. Laws, sec. 5518) it is provided:
A mortgage of real property shall not be deemed a conveyance, whatever its terms, so as
to enable the owner of the mortgage to take possession of the real property without a
foreclosure and sale.
Under the provisions of this last-mentioned section, this court has repeatedly held that a
deed absolute in form, but given as security for a debt, was in fact a mortgage, and would be
regarded in equity as such. In Orr v. Ulyatt, 23 Nev. 134, 140, 43 Pac. 916, this court,
construing the section last mentioned, held that a mortgage is not an alienation, but mere
security for a debt. If the relationship between the parties was in fact that of mortgagor and
mortgagee, then the relationship of landlord and tenant could not be held to exist. In such
case, respondent would be limited to the remedy of foreclosure prescribed in section 559 of
the civil practice act, supra.
38 Nev. 277, 283 (1915) Yori v. Phenix
prescribed in section 559 of the civil practice act, supra. There are cases holding that, where
such a state of facts exists as is alleged in the appellant's answer, the defendant may not set up
his equitable defense in the action for unlawful detainer, but may in a separate action enjoin
the plaintiff from proceeding in the action for unlawful detainer until such equitable defense
is established in the subsequent proceeding. We cannot conceive of any good reason why the
parties should be put to the delay and expense of another proceeding in order to determine the
question of whether a deed is in fact given as security for a debt and should be treated in
equity as a mortgage. Section 661 of the civil practice act, which is part of Chapter 65,
Forcible Entry and Detainer, provides:
The provisions of this act, relative to civil actions, appeals, and new trials, so far as they
are not inconsistent with the provisions of this chapter, apply to the proceedings mentioned in
this chapter.
A section of the chapter prescribes what may be set up in the pleadings where the action is
in forcible entry or forcible detainer, but no specific reference whatever is made to any
limitations as to pleadings in actions for unlawful detainer.
Section 14 of article 6 of the state constitution (Rev. Laws, sec. 329) provides:
There shall be but one form of civil action, and law and equity may be administered in the
same action.
The first section of our civil practice act (Rev. Laws, sec. 4943) provides:
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.
There is nothing in the nature of the action of unlawful detainer inconsistent with the
application of the general provisions of the civil practice act, which permits any defense,
whether legal or equitable, to be interposed in civil actions generally. As said in Taylor's
Landlord and Tenant, sec. 720:
The statute applies only to cases where the conventional relation of landlord and tenant
subsists, and not where it is created by mere operation of law.
38 Nev. 277, 284 (1915) Yori v. Phenix
where it is created by mere operation of law. * * * But where the case made by the affidavit
of the claimant showed that the alleged tenant had conveyed the premises to the party who
instituted the proceedings, stipulating that he should retain possession until a certain period,
and stated that he held over and continued in possession, although that period had elapsed,
and had received a month's notice to quit, it was held that these facts did not constitute a
tenancy within the statue, and that the officer had no jurisdiction. For a similar reason, a
mortgagor cannot be turned out of possession of the mortgaged premises under this statute,
for a mortgagor is not a tenant. * * *
See, also, Hamill v. Bank of Clear Creek Co., 22 Colo. 384, 45 Pac. 411; Reitze v.
Humphreys, 53 Colo. 171, 125 Pac. 522.
If the transaction between appellant and respondent would in equity constitute a mortgage,
but it should be held that appellant could not be heard to show the true relation of the parties
as a defense to the action in unlawful detainer, then we would have the appellant, as
mortgagor, being dispossessed by the mortgagee upon the theory that the relationship of
landlord and tenant existed between them, after which, in a separate action, in which the true
relation of the parties could be shown, the respondent would be in turn dispossessed and the
appellant restored to possession. After these two suits, fruitless of results, were concluded, the
mortgagor would be relegated to his one real remedy of foreclosure.
[3] The purpose of the unlawful detainer statutes was to afford a summary remedy to
landlords, where the true relationship of landlord and tenant existed. That relationship is the
very foundation of the action, and it ought not, we think, be held that a mere prima facie
showing that the relation exists precludes the defendant from showing other facts which
would establish the nonexistence of such relation.
[4] It is sought to here apply the well-established rule that a tenant cannot dispute his
landlord's title; but that rule can have no application where the relationship of landlord and
tenant is not admitted, but is the very issue in the case.
38 Nev. 277, 285 (1915) Yori v. Phenix
rule can have no application where the relationship of landlord and tenant is not admitted, but
is the very issue in the case. (Franklin v. Merida, 35 Cal. 558, 95 Am. Dec. 129; Smith v.
Smith, 81 Tex. 45, 16 S. W. 637; Reitze v. Humphreys, supra.)
Judgment reversed, and cause remanded for a new trial.
____________
38 Nev. 285, 285 (1915) Weck v. Reno Traction Co.
[No. 2125]
CHARLES E. WECK, Respondent, v. RENO TRACTION COMPANY
(A Corporation), Appellant.
[149 Pac. 65]
1. EvidenceControl of Testimony by Physical Limitations.
Undisputed physical facts, which necessarily point to but one conclusion, cannot be overcome by
contradictory oral testimony.
2. TrialTaking Case from JuryMotion for NonsuitQuestions of fact.
Where reasonable men might fairly differ on the conclusions to be drawn from the evidence, the case
should not be taken from the jury on motion for nonsuit.
3. TrialMotion for NonsuitEstimation of Evidence.
On motion for nonsuit, the trial court must construe the evidence most favorably to the plaintiff.
4. Street RailroadsInjuries in CollisionLiability of RoadQuestion for Jury.
In an action against a street railroad for injuries sustained by an automobile in collision with one of its
cars, evidence held to take case to jury.
5. Street RailroadsInjury on TrackDuty to Look and Listen.
The duty which rests upon one about to cross the track of a steam railroad to look and listen does not rest
upon one about to cross that of a street railroad, owing to the different conditions; the question of
negligence of both parties in case of a collision between a street car and one lawfully using the street being
of fact to be determined upon all the circumstances.
6. Street RailroadsInjury on TracksPersons in dangerous PositionJudgment Required.
One who finds himself in a perilous position on a street-car track is not required to exercise the soundest
judgment under penalty of being found guilty of contributory negligence.
7. Street RailroadsInjury on TracksLast Clear Chance.
Where plaintiff, in his automobile, in turning from the side of the road around obstructing vehicles onto
the street-car track, discovered a car coming toward him at an excessive speed, and
exercised reasonably good judgment in trying to extricate himself from danger, his
negligence in going upon the track, if any, stopped at such point, and having stopped,
and not continued until the moment of the accident, defendant's negligence in
running the car at an excessive speed was the proximate cause of the injury to
plaintiff's automobile by the collision, under the doctrine of last clear chance.
38 Nev. 285, 286 (1915) Weck v. Reno Traction Co.
track, discovered a car coming toward him at an excessive speed, and exercised reasonably good judgment
in trying to extricate himself from danger, his negligence in going upon the track, if any, stopped at such
point, and having stopped, and not continued until the moment of the accident, defendant's negligence in
running the car at an excessive speed was the proximate cause of the injury to plaintiff's automobile by the
collision, under the doctrine of last clear chance.
8. TrialInstructionsAbstractness.
The giving of an instruction not applicable to the evidence is erroneous, though abstractly correct.
9. TrialObjections to InstructionsSpecification.
Where an objection and exception were taken to an instruction a portion only of which was abstract, but
did not point out that such portion was not based on evidence, error could not be predicated on the giving
of the charge, for only where a charge is erroneous as a whole or asserts but a single proposition is a
general exception available.
10. Appeal and ErrorQuestions ReviewableError not Urged as Ground for New
TrialStatute.
Under Rev. Laws, sec. 5328, providing that where an appeal is based on the ground that the evidence
does not justify the verdict or support findings, or upon alleged errors in ruling upon evidence, or upon
instructions claimed to be erroneous, a motion for new trial must be made and determined before the appeal
is taken, where the abstractness of an instruction was not urged as ground for new trial, the appellate court
could not consider the point.
11. Appeal and ErrorReservation of Grounds of ReviewNecessity for Objection or
Exception.
The giving of an instruction not made the ground of objection and exception when given cannot be taken
advantage of on appeal as error.
12. Appeal and ErrorQuestions ReviewableSpecification of Error.
An erroneous instruction not specified as error in the memorandum of exceptions cannot be considered
on appeal.
13. TrialInstructionCapitalizing Portion.
The practice of capitalizing a portion of an instruction should not be indulged in.
14. Master and ServantLiability of Master for acts of ServantMotorman.
A motorman operating defendant street-railroad company's car was a servant of such company, whose
negligence in the scope of his duties was imputable to defendant.
15. TrialInstructionsStriking out Portion.
It is better practice to rewrite an instruction when modifying it than to strike out a portion with a pen,
leaving it in such condition as to be easily read.
38 Nev. 285, 287 (1915) Weck v. Reno Traction Co.
16. TrialInstructionsApplicability to IssuesSpeed of Car After Accident.
The speed of defendant street-railroad company's car after it struck and injured plaintiff's automobile was
a matter immaterial to the issues, in an action for injuries sustained by such automobile in collision, where
it threw no light on what preceded, and an instruction touching it was properly stricken: the matter being
improper for instruction except to the effect that it be disregarded.
17. TrialControl of VerdictFailure to FindStatute.
Under Rev. Laws, sec. 5222, providing that where a special finding of facts is inconsistent with the
general verdict the former controls, and the court must give judgment accordingly, if a finding in
defendant's favor on special interrogatories would not be inconsistent with a general verdict for plaintiff, a
failure to find it all on such interrogatories cannot control such general verdict.
18. HighwaysLaw of the Road.
The law of the road in the United States is that vehicles, when passing, should turn to the right.
19. Appeal and ErrorTrivial ErrorControl of VerdictFailure to Make Special
FindingsStatutes.
Under Rev. Laws. sec. 5222, providing that where a special finding of facts is inconsistent with the
general verdict the finding controls, and the court must give judgement accordingly, where, in an action
against a street-railroad company for damages to plaintiff's automobile in collision, the jury failed to
answer special interrogatories whether anything prevented plaintiff from turning his automobile to the left
off defendant's track when he saw the approaching street car, instead of to the right, as he did, after
speeding up to pass vehicles obstructing that side of the road, considering the subjective influence upon
plaintiff of the law of the road, and that it was necessary to decide instantly, on account of the speed of the
approaching car, it could not be said as matter of law that plaintiff was negligent in turning to the right, and
the jury could properly find that plaintiff was not negligent in taking the track at first, that defendant was
negligent in running its car at an excessive speed, and that plaintiff acted reasonably in turning to the right,
although he might have turned to the left with safety, so that the failure to find whether he could so have
turned to the left, assuming that answer would have been that he could, in favor of defendant, was not so
inconsistent with the general verdict for plaintiff as to call for its control by the failure to find, justifying
reversal of judgment entered on the verdict for plaintiff under Rev. Laws, sec. 5066, providing that no
judgment shall be reversed for error not affecting the substantial right of the parties.
Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.
38 Nev. 285, 288 (1915) Weck v. Reno Traction Co.
Action by Charles E. Weck against the Reno Traction Company, for damages to an
automobile. From a judgment for plaintiff and denial of motion for a new trial, defendant
appeals. Affirmed.
Harwood & Springmeyer, for Appellant:
Questions of the conflict of evidence with known physical facts have frequently been
passed upon by courts. (Hayne, New Trial and Appeal, sec. 238; Elliott on Evidence, sec. 39;
Bomscheuer v. Con. Tr. Co., 47 Atl. 872; Hunter v. N. Y., O. & W. Ry. Co., 23 N. E. 9; Payne
v. Chicago & A. R. Co., 38 S. W. 308; Young v. Railway Co., 57 Kan. 144, 45 Pac. 583; Lake
Erie & W. Co. v. Slick, 41 N. E. 365; Medcalf v. St. Paul City Ry., 82 Minn. 18, 84 N. W.
633; Ferris v. Hersheim, 24 South. 771; Gibson v. Southern R. Co., 140; Peters v. So. R. Co.,
33 South., 332; Elliott on Railroads, sec. 1703.)
The law appears to be that a traveler, in the exercise of due care, must look and listen
before he crosses a street-railway track; a fortiori, he should look and listen before driving
along the course of the track. (Nein v. LaCrosse City Ry. Co., 92 Fed. 85; Babbit on Motor
Vehicles, sec. 306; Kelly v. Wakefield Ry., 56 N. E. 285; Gregory v. Slaughter, 99 S. E. 345;
Clark v. Conn. Co., 76 Atl. 523; Campbell v. St. Louis Co., 99 S. W. 58; Lorenz v. Tisdale,
111 N. Y. S. 173; Beeman v. Puget Sound Co., 139 Pac. 1087; Bowden v. Walla Walla Co.,
140 Pac. 549.)
The motion for nonsuit and dismissal should have been sustained upon the ground that
there was no evidence of defendant's negligence, but that the evidence on behalf of plaintiff
and the physical facts showed him to have been negligent. The last-clear-chance-to-avoid rule
is required as an instruction only when there is evidence concerning it. (Drown v. Northern
O. T. Co., 81 N. E. 326; West Chicago Co. v. Schwartz, 93 Ill. App. 387; Quade v.
Metropolitan Co., 39 N. Y. Supp. 335.)
The law of the road does not require the drivers of vehicles always to turn to the right.
(Babbit, Motor Vehicles, sec. 253c; Elliott on Roads and Streets, 619; Strouse v. Whittelsey,
41 Conn. 559; Wayde v. Carr, 2 Dow & Ry. 255; Johnson v. Small, 5 B.
38 Nev. 285, 289 (1915) Weck v. Reno Traction Co.
Strouse v. Whittelsey, 41 Conn. 559; Wayde v. Carr, 2 Dow & Ry. 255; Johnson v. Small, 5
B. Mon. 25; Landa v. McDermott, 16 S. W. 802; Meanow v. Utteck, 1 N. W. 221; Cutright v.
Exp. Co., 175 Ill. App 269; Lyons v. Child, 61 N. H. 72; Denny v. Strauss, 109 N. Y. Supp.
26; Nellis on Street Railways, 2d ed. 987.)
The court cannot, after submitting material special issues to the jury, refuse to require the
jury, upon the rendition of a general verdict and some special verdicts, to make findings upon
all submitted material issues. (Rev. Laws, sec. 522: Clementson, Special Verdicts, pp.
103-113; Hallwood Cash R. Co. v. Dailey, 79 Pac. 158; Stewart v. Henningsen P. Co., 129
Pac. 181; Bargna v. Bargna, 127 S. W. 1156; Brown v. Douglass L. Co., 129 N. W. 161;
Perry Co. v. Wilson, 67 N. E. 183; Life Assur. Co. v. Haughton, 67 N. E. 950; O'Connell v.
United Railroads, 124 Pac. 1023; Larsen v. Leonardt, 96 Pac. 395; Doom v. Walker, 138 N.
W. 138; Garvin v. Garvin, 123 Pac. 71; Cleveland Ry. Co. v. Asbury, 120 Ind. 289; Rathbun
v. Parker, 72 N. W. 31; McKenzie v. McKenzie, 69 S. E. 134; Redford v. Street Ry. Co., 36
Pac. 1085; Kahn v. Central S. Co., 2 Utah, 379.)
Huskey & Springer, for Respondent:
There was sufficient evidence that the defendant was negligent to warrant the submission
of the case to the jury. (Still v. S. F. R. Co., 154 Cal. 559, 98 Pac. 672, 129 Am. St. Rep. 177;
Copriviza v. Rilovich, 4 Cal. App. 26, 87 Pac. 398; Pilmer v. Boise Tract. Co., 14 Idaho, 327,
94 Pac. 432, 125 Am. St. Rep. 161; Adams v. Bunker Hill Mining Co., 12 Idaho, 637, 89 Pac.
624; Gunn v. Gunn, 74 Ga. 555, 58 Am. Dec. 447; Cahill v. Ill. Cent. R. Co., 137 Iowa, 577,
115 N. W. 216; Cahill v. Phelps, 198 Mass. 332, 84 N. E. 496.)
Courts will be very cautious in holding that the testimony of witnesses as to facts to which
they distinctly testify is irreconcilable with physical facts. (Thompson on Trials, sec. 2264;
Coady v. St. Louis R. Co., 85 Mo. 79.)
The evidence does not show negligence on the part of the plaintiff. Where the evidence is
such that different minds may reasonably draw different conclusions as to contributory
negligence, the question is for the jury.
38 Nev. 285, 290 (1915) Weck v. Reno Traction Co.
minds may reasonably draw different conclusions as to contributory negligence, the question
is for the jury. (29 Cyc. 631; Florence v. Snook, 20 Colo. App. 356, 78 pac. 994; O'Neill v.
Chicago R. Co., 62 Neb. 357, 86 N. W. 1098; Clarke Thread Co. v. Bennet, 58 N. J. Law,
404, 33 Atl. 404; Thomson v. Issaquah Shingle Co., 43 Wash. 253, 86 Pac. 588.) Failure to
exercise the greatest prudence, or the most exact judgment, in a sudden emergency, does not
charge one with contributory negligence as a matter of law. The question is one of fact for the
jury. (Linnehan v. Sampson, 126 Mass. 506, 30 Am. Rep. 632; Wright v. Bowler, 3 N. Y.
Supp. 742; Stoughton v. Manf. Nat. Gas Co., 159 Pa. St. 64, 28 Atl. 227.)
The court did not err in its instructions to the jury. There was no error in the instruction as
to the last-clear-chance rule. Error in giving or refusing instructions is harmless where the
complaining party could not have been prejudiced. (Jacksonville R. Co. v. Peninsula Land
Co., Fla. 157, 9 South. 661, 17 L. R. A. 33, 65; Chicago R. Co. v. Levy, 160 Ill. 385, 43 N. E.
357; McLean v. Burbank, 11 Minn. 277; Smith v. Union Trunk Line, 18 Wash. 351, 51 Pac.
400, 45 L. R. A. 169.)
The questions as to which no findings on special issues were returned were not such as the
defendant had a right to have answered. (Plyler v. Pac. Port. C. Co., 92 Pac. 57; Williams v.
S. F. & N. W. R. R. Co., 93 Pac. 122; Miller v. Firemen's Fund Ins. Co. 92 Pac. 332; Pigeon
v. W. P. Fuller Co., 105 Pac. 976; 20 Ency. Pl. & Pr. 30; C. & N. W. R. Co., v. Dunlevy, 129
Ill. 132, 22 N. E. 15; Wakefield v. Wakefield W. Co., 182 Mass. 429, 65 N. E. 814.)
By the Court, Coleman, J.:
Respondent, who was plaintiff in the lower court, on December 17, 1913, while out in his
automobile in the city of Reno, drove along the east side of Elm Street, and upon reaching
Sierra Street turned in a southerly direction; and there being a wagon backed up against the
sidewalk, with a horse hitched to it, whose head came within three feet of the track of
appellant, an auto-truck standing just beyond the horse and wagon, and another horse and
wagon standing in a similar position to the one first mentioned and a short distance
beyond the auto-truck, it was necessary for respondent either to go along the street-car
track until getting past the last horse and wagon mentioned, or go on the opposite
{left-hand) side of the said track.
38 Nev. 285, 291 (1915) Weck v. Reno Traction Co.
another horse and wagon standing in a similar position to the one first mentioned and a short
distance beyond the auto-truck, it was necessary for respondent either to go along the
street-car track until getting past the last horse and wagon mentioned, or go on the opposite
(left-hand) side of the said track. Just as respondent turned in front of the first horse and
wagon, he saw a car of appellant about 225 feet away, approaching at a speed approximated
at from about twenty-five to thirty miles an hour. There was also an automobile on the
left-hand side of the track, traveling in a northerly direction.
Respondent testified:
Well, I was turning around, had to go around the horse, and it put me on the track; I could
not do anything else. If I had pulled across the street, it would have been against the law; I
would have run into an automobile, besides.
Respondent speeded up his automobile and tried to get past the second horse and wagon
and turn off of the track to the right, and just as he was leaving the track the rear end of the
automobile was struck by the street car (which weighed about eighteen tons), and carried a
distance of about twenty-five feet back upon Elm Street, badly damaging the automobile.
Respondent brought suit to recover damages, and upon the trial, plaintiff having rested his
case, a motion for nonsuit was interposed, which being denied, the case was submitted on
plaintiff's evidence. The jury brought in a verdict for the plaintiff. From a denial of a motion
for a new trial and the judgment in favor or respondent, appellant brought the case to this
court.
It is contended that the court erred in denying appellant's motion for a nonsuit. It is urged
that, as witnesses Weck and James were going in the direction of the approaching street car, it
was impossible for them to estimate the speed of the street car. The case of Chicago Gen. R.
Co. v. Novaeck, 94 Ill. App. 178, cited in support of the contention, is not in point. That is a
case where the court said, his (plaintiff's) evidence shows that his attention and efforts were
directed to urging his team so as to get off the track," and consequently he could not
estimate the speed of the train.
38 Nev. 285, 292 (1915) Weck v. Reno Traction Co.
his team so as to get off the track, and consequently he could not estimate the speed of the
train. But an entirely different theory is urged here. We cannot say that the evidence as to the
speed of the street car was not substantially correct. Nor is the fast that the witnesses did not
undertake to fix the speed of an automobile, which was going along the left-hand side of the
street-car track, any reason to assume that they could not form a fairly accurate estimate of the
speed of the street car. Their attention was centered upon the street car, while they ignored the
automobile, so far as estimating its speed.
[1] The point most seriously urged under this assignment is the contention that the
physical facts flatly contradict the testimony of the witnesses, and consequently the jury
should not have been permitted to consider the case. In the case of Mandel v. Washington
Water Power Co., 144 Pac. 921, the Supreme Court of Washington uses this language:
Physical facts which are undisputed and speak the truth with unerring certainty must
control.
This court, in the case of Knock v. Tonopah & G. R. Co., 38 Nev. 143, 145 Pac. 940, says:
It is urged that the case should be reversed because the plaintiff's testimony is
contradicted by physical fact. If any physical fact made it impossible for the engineer to back
up without signal and crush the respondent's arm, such fact would control, and the testimony
in case of respondent would fall. If his testimony regarding any matter essential to his
recovery were contradicted by any physical fact, the case would have to be remanded.
Testimony contrary to a physical fact regarding a matter which is not controlling may weaken
the credibility of the witness, but is not ground for reversal.
With the general rule that undisputed physical facts which speak the truth unerringly
cannot be overcome by oral testimony we most heartily agree, but the testimony in this case
does not bring it within the rule. If two engines had approached each other along a railway
track at the rate of 25 miles an hour and were 400 feet apart, it could be told exactly how
long it would have taken them to meet.
38 Nev. 285, 293 (1915) Weck v. Reno Traction Co.
at the rate of 25 miles an hour and were 400 feet apart, it could be told exactly how long it
would have taken them to meet. In this supposed case we have two fixed, positive facts to
figure on, namely, the distance the engines are apart and the exact speed at which they are
traveling. If a witness were to testify that it took two minutes for the two engines to collide,
we could ascertain the correctness of his testimony by invoking the science of mathematics.
Such is not the situation in the case before us. Everything was approximated. The distance
between the automobile and the street car was fixed by the testimony at about 200 or 225
feet, the speed of the automobile at about 4 to 7 miles an hour, and of the street car at
about 25 to 30 miles an hour. So there are three elements approximatedthe distance
between the street car and the automobile, the speed of the automobile, and the speed of the
street car.
[2-4] In view of the well-established rule that a case should not be taken from a jury on a
motion for nonsuit where reasonable men might fairly differ on the questions of fact, and that
the court must construe the evidence most favorably to the plaintiff when such a motion is
under consideration (McCafferty v. Flinn, 32 Nev. 273, 107 Pac. 225), we cannot say that the
court erred in denying the motion.
[5] It is urged that the evidence shows such contributory negligence on the part of the
plaintiff as to preclude his recovery, in that he should have looked and listened before turning
onto the street-car track at Sierra Street. Such is the well-known rule applicable to steam
railroads, but we think the better rule and the weight of authority are to the contrary so far as
street-car lines are concerned. The Supreme Court of Colorado, in Philbin v. Denver City
Tramway Co., 36 Colo. 331, 85 Pac. 631, lays down the following rule:
The duty imposed upon persons crossing steam-railway tracks to stop, look, and listen, is
not rigidly applied to persons traveling a street used by a street railway.
The Supreme Court of Utah, in Spiking v. Con. Ry. & P. Co., 33 Utah, 323, 93 Pac.
38 Nev. 285, 294 (1915) Weck v. Reno Traction Co.
P. Co., 33 Utah, 323, 93 Pac. 841, uses the following language:
It would seem to require but slight reflection to realize that, in the nature of things, there
must be considerable difference between an attempt to cross a street railway and a steam
railway, or in passing along the tracks of the one or the other. Without stopping to point out
all the differences, we may be permitted to call attention to one of the fundamental
differences between street and steam railways. The part of the street on which a street railway
track is laid, and over which cars are operated, is not withdrawn from public use and travel.
The rights and duties of the public and the street-car operatives are mutual and reciprocal.
The only right that the operators of a street railway possess over the public generally is a
preferential right of passage over the tracks with the cars, and that between public crossings it
is always the duty of the pedestrian or the person driving a vehicle to see to it that he does not
impede the street car. But the street-car company, in operating its cars, must likewise at all
times and places exercise ordinary care so as not to injure any one who may be on or near the
track, and at public crossings must have its cars under the control of the operator, and must
exercise reasonable care to have them so in approaching the crossings; the degree of care to
be exercised always depending upon the prevailing circumstances and conditions. As a
general rule, therefore, where a collision occurs between a person lawfully using the street
and a street car, the question as to whether the operator or such person, or both, were
exercising the degree of care that the law imposes, is a question of fact depending upon all the
surrounding circumstances and conditions.
In Benjamin v. Holyoke St. Ry. Co., 160 Mass. 3, 35 N. E. 95, 39 Am. St. Rep. 446, the
court says:
The next particular assigned is that she failed to look to see if a car was coming; and a
special instruction was asked, based on the assumption that she failed to look. This, also, was
for the jury. The accident did not occur from a collision at the street crossing.
38 Nev. 285, 295 (1915) Weck v. Reno Traction Co.
from a collision at the street crossing. The plaintiff had passed that point, and was proceeding
on Appleton Street. The court rightly refused to instruct the jury that a mere failure to look
would prevent her from recovering. This has been so held even in cases of collision.
(Shapleigh v. Wyman, 134 Mass. 118; French v. Railroad Co., 116 Mass. 537.) The question
was left to the jury with proper instructions.
In Swain v. Fourteenth St. R. Co., 93 Cal. 184, 28 Pac. 830, the Supreme Court of
California uses the following language:
And it was clearly a question for the jury whether the driver of the patrol wagon did use
ordinary care in endeavoring to avoid the collision, or whether he ought not to have turned
out of the track more quickly when he saw defendant's car approaching. This evidence was
also sufficient to show that the driver of the car was negligent in omitting, without any
apparent excuse, to look ahead, and observe whether the track was clear. It is the duty of such
a driver, equally with the driver of any other vehicle, to observe what is in the road before
him, so as to avoid inflicting injury upon others, if practicable.
To the same effect, see Finnick v. Boston & N. St. Ry., 190 Mass. 382, 77 N. E. 500;
Robbins v. Springfield St. Ry. Co., 165 Mass. 30, 42 N. E. 334; Indianapolis St. Ry. Co. v.
Schmidt, 35 Ind. App. 202, 71 N. E. 663, 72 N. E. 478; Kramm v. Stockton El. R. Co., 3 Cal.
App. 606, 86 Pac. 740, 903; Lake Roland El. Ry. Co. v. McKewen, 80 Md. 593, 31 Atl. 797;
Bremer v. St. Paul City Ry. Co., 107 Minn. 326, 120 N. W. 382, 21 L. R. A. n. s. 887; 21 Am.
Neg. Rep. 172; White v. Wor. Con. St. R. Co., 167 Mass. 43, 44 N. E. 1053; 12 Am. Neg.
Cas. 56.
[6-7] It is contended on the part of appellant that the court erred in instruction No. 13,
wherein it sought to define the last clear chance doctrine, and counsel relies with great
confidence upon the case of Drown v. Northern Ohio Traction Co., 76 Ohio St. 234, 81 N. E.
326, 10 L. R. A. n. s. 421, 118 Am. St. Rep. 844, where it is said that the rule should not be
given as a "hit-or-miss" rule.
38 Nev. 285, 296 (1915) Weck v. Reno Traction Co.
rule should not be given as a hit-or-miss rule. While we agree with the statement, it will be
seen that the learned judge also said:
But if the plaintiff's negligence merely put him in the place of danger, and stopped there,
not actively continuing (italics ours) until the moment of the accident, and the defendant
either knew of his danger, or by the exercise of such diligence as the law imposes on him
would have known it, then, if the plaintiff's negligence concurrently combined with
defendant's negligence concurrently combined to produce the injury, the defendant's
negligence is the proximate cause of the injury, and that of the plaintiff is the remote cause.
This is all there is of the so-called doctrine of the last clear chance.'
We believe this is a correct statement of the rule. Then, bearing in mind the rule that a
person who finds himself in a perilous position is not required to exercise the soundest
judgment (Bunting v. C. P. R. R. Co., 14 Nev. 361; Olson v. Erickson, 53 Wash. 458, 102
Pac. 401; Wheeler v. Oregon R. & N. Co., 16 Idaho, 375, 102 Pac. 355; Colorado M. Ry. Co.
v. Robbins, 30 Colo. 449, 71 Pac. 371; Mathews v. Daly West M. Co., 27 Utah, 193, 75 Pac.
722; Hicks v. S. P. Co., 27 Utah, 526, 76 Pac. 627; Linnehan v. Sampson, 126 Mass. 506, 30
Am. Rep. 692; Wright v. Boller, 51 Hun, 636, 3 N. Y. Supp. 742, affirmed in 123 N. Y. 630,
25 N. E. 952; Stoughton v. Manufacturers' Nat. Gas Co., 159 Pa. 64, 28 Atl. 227; Kramm v.
Stockton Elec. R. Co., 3 Cal. App. 606, 86 Pac. 741, 903; Davis v. Chicago R. I. & P. Ry. Co.,
159 Fed. 10, 88 C. C. A. 488, 16 L. R. A. n. s. 424; The City of Boston, 159 Fed. 266;
Springer v. St. Louis S. W. Ry. Co., 161 Fed. 801, 88 C. C. A. 619), did the court err in the
instruction? While we cannot see that the plaintiff was necessarily negligent in turning down
Sierra Street, yet, if he was, but as soon as he discovered the street car coming toward him at
an excessive rate of speed exercised reasonably good judgment, situated as he was, in
endeavoring to extricate himself from his dangerous position, his negligence must be said to
have stopped; and having stopped and not actively continuing until the moment of the
accident," and the defendant, either knowing of his danger, or by the exercise of such
diligence as the law imposed upon it should have known of it, the proximate cause of the
accident was the negligence of the defendant, and the last-clear-chance rule was
applicable.
38 Nev. 285, 297 (1915) Weck v. Reno Traction Co.
actively continuing until the moment of the accident, and the defendant, either knowing of
his danger, or by the exercise of such diligence as the law imposed upon it should have
known of it, the proximate cause of the accident was the negligence of the defendant, and the
last-clear-chance rule was applicable.
Mr. Chief Justice Baldwin, now governor of Connecticut, in Smith v. Conn. Ry. & L. Co.,
80 Conn. 268, 67 Atl. 888, 17 L. R. A. n. s. 708, states that:
Negligence is only deemed contributory when it is a proximate cause of the injury. That
only is a proximate cause of an event, juridically considered, which, in a natural sequence,
unbroken by any new and intervening cause, produces that event, and without which that
event would not have occurred. It must be an efficient act of causation separated from its
effect by no other act of causation. If, after an act of omission constituting negligence on the
part of one injured at a railroad crossing, the railroad car or cars might have been so
controlled, by the exercise of reasonable care and prudence on the part of those in charge of
them, as to avoid the injury, then a failure to exercise such care and prudence would be an
intervening cause, and so the plaintiff's negligence no longer a proximate cause, and therefore
not a bar to his recovery.
Supporting this rule are the following cases: Neary v. Northern Pac. Ry. Co., 37 Mont.
461, 97 Pac. 948, 19 L. R. A. n. s. 446; Nichols v. Chicago B. & Q. R. Co., 44 Colo. 501, 98
Pac. 814; Anderson v. Great Northern Ry. Co., 15 Idaho, 551, 99 Pac. 98; Swain v.
Fourteenth St. Ry. Co., supra; Philbin v. Denver City Tramway Co., supra; Pilmer v. Boise
Traction Co., 14 Idaho, 327, 94 Pac. 437, 15 L. R. A. n.s. 254, 125 Am. St. Rep. 161; Nicol v.
Oregon-Washington Ry. & N. Co., 71 Wash. 409, 128 Pac. 630, 43 L. R. A. n.s. 174, Cerrano
v. Portland Ry. L. & P. Co., 62 Or. 421, 126 Pac. 40; Harlan v. St. Louis K. C. & N. R. Co.,
65 Mo. 25; Esrey v. S. P. Co., 103 Cal. 541, 37 Pac. 501; Herrick v. Wash. W. P. Co., 75
Wash. 149, 134 Pac. 938, 48 L. R. A. n.s. 640; Schmidt v. Mo. P. Ry. Co., 191 Mo. 215, 90 S.
W. 136, 3 L. R. A. n. s. 205; Sawyer v. Roanoke, 145 N. C. 24, 5S S. E. 59S, 22 L. R. A. n. s.
200; Richmond P.
38 Nev. 285, 298 (1915) Weck v. Reno Traction Co.
3 L. R. A. n. s. 205; Sawyer v. Roanoke, 145 N. C. 24, 58 S. E. 598, 22 L. R. A. n. s. 200;
Richmond P. & P. Co. v. Gordon, 102 Va. 498, 46 S. E. 772.
[8-10] It is also contended that the trial court erred in giving instruction No. 13, for the
further reason that it alludes to braking appliances, as there is no testimony in the case
concerning the condition of the brakes. It is a general rule of law that it is error to give an
instruction which is correct in law, but which is not based upon evidence (White v. City of
Trinidad, 10 Colo. App. 327, 52 Pac. 216; Spiking v. Con. Ry. & P. Co., 33 Utah, 313, 93
Pac. 844); but the objection and exception taken to the instruction at the time it was given do
not point out that this portion of the instruction was not based upon any evidence. From a
reading of the exception, it is apparent that counsel did not have this point in mind at all, but
that his objection went only to the last-clear-chance phase. Nor does it appear that this point
was urged as a ground for a new trial, as is necessary before it can be considered by this court.
(Rev. Laws, sec. 5328.) This court, in the case of Paul v. Cragnaz, 25 Nev. 325, 59 Pac. 857,
60 Pac. 983, 47 L. R. A. 540, which was a case in which several propositions were covered
by the instruction, said:
We think the rule is well established that in such case, if any portion excepted to is sound,
the exception cannot be sustained. (Morrill v. Palmer, 68 Vt. 1, 33 Atl. 829, 33 L. R. A. 411,
and cases cited.) Exceptions should be specific, and should be directed, not to the charge as a
whole, but to the portion or portions thereof which are considered objectionable. It is only
where the charge is erroneous in its whole scope and meaning, or where the charge, in effect,
asserts but a single proposition, that a general exception will be available.' (8 Enc. Pl. & Pr.
257.) See citations given of many cases in twenty-five state courts, and numerous cases in the
federal courts.
See, also, Schollay v. Moffitt-West Drug Co., 17 Colo. App. 126, 67 Pac. 182; City of
Denver v. Strobridge, 19 Colo. App. 435, 75 Pac. 1076; Hain v. Mattes, 34 Colo. 345, 83
Pac. 127.
38 Nev. 285, 299 (1915) Weck v. Reno Traction Co.
Since the instruction covered two points, and the objection and exception went to one of
them only, and that the one not complained of here, the alleged error should not be considered
by this court.
[11-13] It is also asserted that the trial court erred in giving instruction No. 13, in that a
portion of it was in capital letters. This was not made a ground of objection and exception at
the time it was given, nor was it specified as error in the memorandum of exceptions, and for
that reason cannot be considered, as shown above. However, we may say, in passing, that the
practice should not be indulged in.
[14] Instruction No. 14 simply informs the jury that the motorman was the servant of
defendant company, and, if the accident was caused through his negligence, such negligence
should be imputed to the defendant. This was not error. (Hearn v. Wil. City Ry. Co., 1 Boyce,
271-277, 76 Atl. 629; Little Rock Electric Co. v. Goerner, 80 Ark. 168, 95 S. W. 1007, 1010,
7 L. R. A. n. s. 97, 10 Ann. Cas. 273.)
[15] It is insisted that prejudicial error was committed by the trial court in modifying a
requested instruction by striking out with a pen a certain portion and leaving that portion in
such a condition as to be easily read. While it is the better practice to have an instruction
rewritten when modified, instead of running a pen through it, we cannot say that prejudicial
error was committed in this instance.
[16] It is also contended that the court erred in modifying the instruction. The portion
stricken out went to the rate of speed at which the street car was traveling after the accident.
We think that the court did right in modifying the instruction by striking out the matter
complained of. That which happens after an accident, when it throws no light on what
preceded it, as in this case, is not a proper matter for instruction from the court, unless to
instruct that it be disregarded.
Error is assigned to the refusal of the court to give certain other instructions requested on
behalf of the defendant, but we need not consider them, in view of the fact that what we
have said disposes of them.
38 Nev. 285, 300 (1915) Weck v. Reno Traction Co.
defendant, but we need not consider them, in view of the fact that what we have said disposes
of them.
[17] It is contended that the trial court should have compelled the jury to make answer to
two questions submitted calling for special findings, and that judgment should not have been
entered upon the general verdict because of the failure to answer these questions. The
questions and answers are:
Q. No. 4. What, if anything, was there to prevent the plaintiff from passing to the left into
Sierra Street from defendant's track after plaintiff first saw and knew of the approaching car?
A. Cannot agree.
Q. No. 7. Were there any vehicles or obstructions on the east side of Sierra Street
between the points where the automobile was driven upon the track and the point of
collision? A. Cannot agree.
Section 5222 of the Revised Laws of Nevada provides:
* * * In all cases the court must upon the request in writing of any of the parties, direct
the jury to find a special verdict in writing upon all or any of the issues. * * * Where a special
finding of facts is inconsistent with the general verdict, the former controls the latter and the
court must give judgment accordingly.
The evident purpose of this section is to enable the court to determine if a general verdict
is due to an erroneous application of the law to the facts as actually found by the jury.
Consequently, should a jury render a general verdict for a plaintiff, but find against him as to
some fact which he has asserted, and should that finding be not inconsistent with the
general verdict, and consequently not controlling, the court would, as is necessarily implied
from the language of the statute, render judgment for the plaintiff on the general verdict. Then
if a case should be submitted to a jury and it returns a general verdict for plaintiff, but as to
the question of fact upon which a special finding is sought answers that it cannot agree, and
the court refuses to grant a new trial and enters judgment on the general verdict, would such
action by the court be reversible error, where, if there were a finding in favor of defendant, it
would not be so "inconsistent" with the general verdict as to "control"?
38 Nev. 285, 301 (1915) Weck v. Reno Traction Co.
were a finding in favor of defendant, it would not be so inconsistent with the general
verdict as to control? We think not.
It was said in the case of Schneider v. Chicago, B. & N. R. Co., 42 Minn. 68, 43 N. W.
783:
Where the jury find a general verdict in favor of the plaintiff, but fail to agree upon a
specific question submitted to them, the general verdict is properly received, unless a finding
in favor of the defendant on the specific question submitted would be conclusive against
plaintiff's right to recover.
Supporting this rule are Williams v. S. F. & N. W. R. R. Co., 6 Cal. App. 715, 93 Pac. 123;
Pigeon v. W. P. Fuller Co., 156 Cal. 691, 105 Pac. 976; C. & N. W. R. Co. v. Dunlevy, 129
Ill. 132, 22 N. E. 15; Wakefield v. Wakefield, 182 Mass. 429, 65 N. E. 814.
If the theory we have advanced is sound, no substantial rights of the defendant were
violated by a refusal of the court to compel the jury to answer the questions, assuming that if
the questions submitted were answered in favor of defendant they would not be so
inconsistent with the general verdict as to control, and consequently the case should not be
reversed. (Rev. Laws, sec. 5066; State v. Mircovich, 35 Nev. 485, 130 Pac. 765.)
[18-19] Then, keeping in mind the idea that the general verdict controls unless an
answer to a special question which is favorable to the defendant would be inconsistent with
the general verdict, we will look at the situation and determine (as it must be presumed the
trial court did) if favorable answers to the defendant in the case at bar would have justified
the trial court in granting defendant a new trial. To enable us to arrive at a correct conclusion
on this point, we must remember that the plaintiff proceeded in the trial court upon two
theories: (1) That he was not negligent in turning off of Elm Street upon defendant's track, but
that defendant was negligent in operating its car at the high rate of speed it did, and because
thereof the accident ensued; and (2) assuming that plaintiff was negligent in turning upon
defendant's track, nevertheless defendant had the last clear chance to avoid the accident
and was negligent in failing to do so.
38 Nev. 285, 302 (1915) Weck v. Reno Traction Co.
defendant's track, nevertheless defendant had the last clear chance to avoid the accident and
was negligent in failing to do so.
The jury found, in response to special questions, that when the plaintiff turned upon the
street-car track the street car was about 225 feet from the plaintiff. It also found that the
automobile went about 25 feet before it was struck. Counsel for plaintiff in his oral
argument admitted that the evidence showed that the speed of the street car was between 25
and 30 miles an hour. By actual calculation it will be seen that if the automobile and street
car were exactly 225 feet apart, and the automobile traveled 25 feet, and the street car was
going at the rate of 25 miles an hour, it took exactly 5.45 seconds for them to collide. Had
plaintiff stopped his automobile instantly upon seeing the street car, it would have taken 6.16
seconds for the street car to strike the automobile. Now, if the jury found that the plaintiff was
not negligent in turning upon the street-car track, and that the defendant was negligent in
operating its car at the speed it did, and that the accident was the result thereof, the further
question to be determined by the jury in arriving at a verdict upon plaintiff's first theory
isassuming that there was nothing to have prevented plaintiff from turning to the leftwas
he, situated as he was, guilty of negligence in not doing so?
Since it is a universal custom in the United States for persons in meeting while traveling in
conveyances upon the streets and highways to turn to the right, the custom has become
recognized as the law of the road. (Elliott on Roads and Streets, 3d ed. sec. 1080.) While
there are occasions when one would not doubt be guilty of negligence for not turning to the
left, the custom of turning to the right is so universal that it becomes second nature to do so;
we do it instinctively. Considering this, and that it was necessary for plaintiff to decide
instantly, in view of the speed at which the street car was traveling, can it be said that, as a
reasonably prudent man, plaintiff was negligent in turning to the right? Fair-minded men
might differ as to whether a person of ordinary prudence would have turned to the right
as plaintiff did, and therefore it cannot be said as a matter of law that he was guilty of
contributory negligence in doing so.
38 Nev. 285, 303 (1915) Weck v. Reno Traction Co.
Fair-minded men might differ as to whether a person of ordinary prudence would have
turned to the right as plaintiff did, and therefore it cannot be said as a matter of law that he
was guilty of contributory negligence in doing so. If the jury in considering this case and
arriving at a verdict took, or might have taken, the view that plaintiff was not negligent in
turning onto the street-car track, and that defendant was negligent in running its car at from
twenty-five to thirty miles an hour, and that plaintiff, situated as he was, acted as a reasonably
prudent man in turning to the right (in approaching the street car), notwithstanding the fact
that he might have been able to turn to the left with safety, then answers in favor of appellant
to the two questions submitted would not have been so inconsistent with the general verdict
as to control, and therefore the refusal of the trial court to compel the jury to answer the
questions was not prejudicial error.
Finding no prejudicial error in the record, the judgment is affirmed.
____________
38 Nev. 304, 304 (1915) State v. Clark
[No. 1909]
STATE OF NEVADA, Respondent, v. BERNARD
CLARK, Appellant.
[149 Pac. 185]
ON REHEARING
1. Criminal LawTrialCredibility of WitnessesQuestion for Jury.
The credibility of witnesses in a criminal case and the weight to be given their testimony is exclusively
for the jury.
2. Criminal LawMisconduct of Presiding JudgeEvidence.
Where the guilt of accused charged with murder depended on whether there was a prior understanding
between him and a third person who fired the fatal shot, and the state chiefly relied on the fact that accused
raised his hand and said All right, just prior to the shot, to establish concert of action, the action of the
court in calling in the jury after deliberating for some time, and ascertaining that they stood numerically 11
to 1, then urging them to reach a verdict if they could conscientiously do so, stating that the trial had been a
great expense to the county, and in the presence of the jury denying accused an exception and threatening
accused's counsel with punishment for contempt, was prejudicial error.
Appeal from Sixth Judicial District Court, Humboldt County; W. H. A. Pike, Judge.
Bernard Clark was convicted of murder in the second degree, and appealed. Judgment
affirmed (36 Nev. 472, 135 Pac. 1083). Rehearing granted, judgment and order reversed, and
cause remanded for new trial.
W. D. Jones, for Appellant:
Aside from the question whether the remarks of the court to the jury were given in writing,
as required by section 355 of the criminal practice act, the language of the court was such as
to prejudice the jury against the appellant. If the language means anything, it means that the
court was anxious for the jury to agree on a verdict. (Burton v. U.S., 49 L. Ed. 489; Peterson
v. U.S., 213 Fed. 920; State v. Ivanhoe, 36 Or. 150, 57 Pac. 317; Randolph v. Lampkin, 90
Ky. 552; Whitelaw v. Whitman, 83 Va. 40; State v. Bybee, 17 Kan. 462.)
Geo. B. Thatcher, Attorney-General, for Respondent.
38 Nev. 304, 305 (1915) State v. Clark
By the Court, Norcross, C. J.:
Judgment upon a conviction of murder in the second degree was affirmed in the former
opinion and decision of this court, reported in 36 Nev. 472, 135 Pac. 1083. Rehearing was
granted that further consideration might be given to the case which presented a number of
close questions, particularly in reference to the action of the court in calling in the jury after it
had retired to deliberate upon its verdict, and the proceedings thereafter following:
For convenience of consideration we will again recite that protion of the record as it
appears in the former opinion:
After the jury had retired for deliberation, and had remained out several hours without
reaching a verdict, they were called into the courtroom, and the following proceedings were
had:
The CourtWell, now, I do not want you to state how you stand except numerically.
You understand that it is numerals. Don't want you to state to me how you standnot what
you are in favor of. Understand?
Mr. ForemanYes, sir.
The CourtBut I want to know how you stand numerically. Now, be careful. Is it
Does the balance stand 6 to 6, or 8 to 4, or 3 to 9, or something? What is the result of your
last ballot, without stating what it was?
Mr. ForemanI understand; 11 to 1.
The CourtWell, that looks easy. If it is in that condition, and there isn't anything you
want of the court, is there, that you know of?
Mr. ForemanNo, I don't think there is.
The CourtI do not want any of you to understand, gentlemen, that I wish to suggest in
the slightest degree as to what your verdict should be. That is furthest away from my mind.
All I want to say to youto remind youthat, if you can conscientiously do so, it is your
duty to reach an agreement as to something or other. The trial has been on here now since the
28th of April, consuming something over or about three weeks of the court's and
attorneys' time, and it has cost Humboldt County a vast sum of money.
38 Nev. 304, 306 (1915) State v. Clark
consuming something over or about three weeks of the court's and attorneys' time, and it has
cost Humboldt County a vast sum of money. Now, if you can possibly conscientiously agree
upon a verdict, it is your duty to do so. The sheriff will take you to dinner in about half an
hour, and I want you to retire to the jury room and go to work.
Mr. McCarranIf the court please, let the record show that upon the part of the defense
we save an exception now to the remarks of the court as trying to induce the jury to arrive at a
verdict by offering them inducements along the lines of the expense, which is prejudicial to
the defendant.
The CourtWell, the record will show that the attorney is out of order and has no right
to take an exception, and the exception will not be allowed.
Mr. McCarranWell, we will try and have that exception allowed.
The CourtIf the attorney is not very careful, he will be in contempt of court. Let the
record show that. You may retire to the jury room, gentlemen. Defendant may be remanded.
[1-2] We have been asked to reconsider this phase of the case, particularly in view of the
evidence offered upon the part of the state to sustain a conviction. While the question of
insufficiency of the evidence to justify the verdict is not raised upon the record, it is
contended that the evidence is far from establishing guilt with any considerable degree of
certainty, and is of such a character that any error upon the part of the court should be
regarded as sufficient to have turned the balance against the defendant; that the conduct of the
court in the particular mentioned, in view of the evidence, ought to be regarded as sufficiently
prejudicial to warrant a reversal.
Without reviewing the evidence at length and recognizing the well-settled rule that the
credibility of the witnesses and the weight to be given their testimony is entirely a matter for
the jury, it is proper to say that the evidence against the defendant was largely, if not entirely,
circumstantial.
38 Nev. 304, 307 (1915) State v. Clark
entirely, circumstantial. It was the theory of the state that a conspiracy had been formed
between the appellant and three others, who were associated in the location of certain mining
property, to kill Sol Hendra, who, with his two brothers and some other parties, also claimed
title to the property. The decedent, together with three other parties, had gone upon the
ground to do the annual labor upon the claims. They were met by the appellant and two of his
associates. The appellant protested against the work proceeding.
A. M. Williams, one of the principal witnesses for the state, gave the following testimony
concerning the immediate circumstances of the shooting:
When we got there, I told Mr. Hendra and my son to go to work. * * * Clark said, Now
you have gone to work, now I have you right where I want you. Now, come over to the tunnel
and I will unlock that for you.' I then left them standing, myself left Clark, Fuller, Coak, along
with my own party, standing near the dump, with Mr. Hendra at work, and stepped up above
the cut and dump to the place where there had been work done last year. * * * I then turned
around and started back down the hill, and I saw this man, Clark, raise his hand that way
(indicating) and say All right.' The next thing I knew I heard the spat of a ball and the whistle
of a bullet, and then heard the report of the gun or rifle. * * * When I heard the report of the
gun I looked up the hill and I saw a man running with a rifle in his hand. He was running
toward the tunnel and the ore-house and the dump of the Tulula mine. I heard my son say to
Clark, You have killed a man, now, tell those men to shot (stop) shooting.' Clark
immediately holloed Hey, what the hell are you fellows doing up there?' He was then
running, Clark was, with Fuller and Coak, toward this tunnel and the ore-house and dump, the
old dump of the Tulula mine where their tent was. They disappeared over the hill very
quickly, and the man, Fuller, came back over the hill after he had disappeared, he came back
over again, back to within fifty or sixty feet perhaps of where we were, and asked if there
was anybody hurt, when Mills told him, 'You can see for yourself, the man is dead.'"
38 Nev. 304, 308 (1915) State v. Clark
we were, and asked if there was anybody hurt, when Mills told him, You can see for
yourself, the man is dead.'
Whether defendant was guilty of the offense charged depended upon whether there was a
prior understanding between the defendant and the man who fired the shot from the top of the
hill some 160 yards away. The circumstance that the appellant raised his hand and said All
right, just prior to the shot, is the main circumstance in the case relied upon by the state to
establish concert of action between the defendant and the one who actually fired the shot. A
great deal of testimony in the record, which is very voluminous, is directed to this
circumstance. The man who fired the shot appears never to have been apprehended. The
defendant and his two companions surrendered themselves to the officers.
Considering the question whether alleged improper conduct upon the part of the district
attorney in argument to the jury amounted to prejudicial error, in the recent case of State v.
Clancy, 38 Nev. 181, 147 Pac. 449, 451, we said:
In any case, whether remarks of the prosecuting attorney in argument amount to
reversible error, depends somewhat upon the whole record in the case.
The same reasoning applies to alleged misconduct upon the part of the trial judge. Slight
misconduct in one case might justify a reversal, when in another case where the evidence of
guilt was far more convincing, a court might properly hold it insufficient to constitute
prejudicial error. Misconduct may, however, be so gross that courts will set aside a verdict
notwithstanding the evidence of guilt is quite apparent, where such conduct virtually destroys
defendant's constitutional right to a fair and impartial trial. (State v. Schneiders, 259 Mo. 319,
168 S. W. 604.) With this latter character of cases, however, we are not concerned upon this
appeal. The views heretofore expressed upon the question under consideration if changed,
and we think they should be, should turn upon the fact that in this case the evidence of guilt is
not so potential, but that slight error may have prejudiced the defendant in his substantial
rights.
38 Nev. 304, 309 (1915) State v. Clark
of guilt is not so potential, but that slight error may have prejudiced the defendant in his
substantial rights. Presenting a situation somewhat similar to that involved in the case at bar,
is the case of Burton v. United States, 196 U. S. 283, 25 Sup. Ct. 243, 49 L. Ed. 482. We
quote the following excerpt from the opinion of the court by Mr. Justice Peckham in that
case:
Balanced as the case was in the minds of some of the jurors, doubts existing as to the
defendant's guilt in the mind of at least one, it was a case where the most extreme care and
caution were necessary in order that the legal rights of the defendant should be preserved.
* * * We must say, in addition, that a practice ought not to grow up of inquiring of a jury,
when brought into court because unable to agree, how the jury is divided; not meaning by
such question, how many stand for conviction or how many stand for acquittal, but meaning
the proportion of the division, not which way the division may be. Such a practice is not to be
commended, because we cannot see how it may be material for the court to understand the
proportion of division of opinion among the jury. All that the judge said in regard to the
propriety and duty of the jury to fairly and honestly endeavor to agree could have been said
without asking for the fact as to the proportion of their division; and we do not think that the
proper administration of the law requires such knowledge or permits such a question on the
part of the presiding judge. Cases may easily be imagined where a practice of this kind might
lead to improper influences, and for this reason it ought not to obtain.
See, also Peterson v. United States, 213 Fed. 920, 130 C. C. A. 398.
In the case at bar the jury had not reported that they were unable to agree nor had requested
further instructions. When brought into court upon the order of the judge and interrogated as
to how they stood numerically, they were informed by the judge that the situation, as
presented by the answer of the foreman that the jury stood 11 to 1, "looks easy, if it is in
that condition."
38 Nev. 304, 310 (1915) State v. Clark
presented by the answer of the foreman that the jury stood 11 to 1, looks easy, if it is in that
condition. The jury is then reminded of the great amount of time consumed in the trial, and
that it has cost Humboldt County a vast sum of money. An attempt upon the part of counsel
to interpose an exception to the remarks of the court is met with the statement that the
counsel is out of order and not entitled to take an exception, and that the same would not be
allowed. Persistence upon the part of counsel, that his exception should be allowed, is met
with the suggestion that the conduct of the attorney is bordering closely on contempt.
While it is true that the trial judge advised the jury that he did not in the slightest degree
wish to suggest what the verdict should be, and that it was the duty of the members of the jury
to agree upon a verdict if they conscientiously could do so, it is also true that the judge
expressed his opinion that the fact that the jury stood 11 to 1 looks easy. This expression,
taken in connection with the emphasis placed on the time consumed in the trial and that it had
cost the county a vast sum of money, would naturally have a tendency to weigh with
considerable force upon the jury, and especially upon the mind of a single member who might
naturally feel called upon to cast into the scale as against the defendant the time and expense
of the trial, and that it looked easy to the judge that the one ought to agree with the other
eleven. It is not always true that the one obstinate juryman is wrong and the other eleven
are right, and it is not any too clear that such is the fact in this case. It is a right guaranteed to
a defendant on trial for a criminal offense that he shall have the judgment of twelve men
uninfluenced by matters foreign to the evidence admitted at the trial. When the action of the
trial judge in the matter complained of is considered in connection with the entire case, we do
not feel justified in saying that, notwithstanding, the defendant was not prejudiced thereby.
38 Nev. 304, 311 (1915) State v. Clark
The other questions considered upon the former hearing we deem correctly determined.
The judgment and order are reversed, and the case remanded for a new trial.
Coleman, J.: I concur.
[McCarran, J., having been an attorney for appellant, did not participate.]
____________
38 Nev. 311, 311 (1915) Truckee River Gen. Elec. Co. v. Durham
[Nos. 2047 and 2063]
TRUCKEE RIVER GENERAL ELECTRIC COMPANY (A Corporation), Appellant,
v. F. E. DURHAM, Respondent.
[149 Pac. 61]
1. Eminent DomainAssessment of Damages by JuryStatutes.
In condemnation proceedings to assess the damages for a right of way taken by a power company, the
complaint and answer contained names of commissioners to assess compensation and damages, as provided
by Stats. 1907, c. 128, the act governing at the time. Rev. Laws, secs. 5606-5629, relating to the subject of
eminent domain, enacted after institution of the proceedings, provided in section 5624 that the provisions
of the Revised Laws relative to civil actions should constitute the rules of practice in proceedings under
said chapter. Section 5199 provided that an issue of fact should be tried by a jury, unless a jury trial was
waived, and section 5818 provided that the repeal of a law by the act should not affect any action or
proceeding commenced in a civil case before the repeal took effect, but the proceedings in such case shall,
as far as practicable, conform to the provisions of the Revised Laws. Held, that the action of the trial court
in calling a jury was justified; since the general rule against the retrospective construction of a statute does
not apply to statutes relating only to remedies.
2. Eminent DomainAssessment of Damages by JuryStatuteConstitutionality.
The legislature may delegate to a jury the power to fix compensation and damages in condemnation
proceedings; the constitution being silent as to the method of determining such matters.
3. Eminent DomainAssessment of Damages by JuryStatuteRepeal.
Where condemnation proceedings were instituted when Stats. 1907, c. 128, regulated the subject, and
provided that compensation and damages should be assessed by commissioners, the assessment of
damages in such proceedings by a jury was permissible after the enactment of Rev.
Laws, secs.
38 Nev. 311, 312 (1915) Truckee River Gen. Elec. Co. v. Durham
assessment of damages in such proceedings by a jury was permissible after the enactment of Rev. Laws,
secs. 5606-5629, which regulated the subject of eminent domain, and expressly repealed the former act;
since the general rule that a special statute enacted for a special purpose, when complete in itself, is not
repealed, modified, or amended by a subsequent general statute, has no application where the later general
statute expressly repeals the former act.
4. Eminent DomainAssessment of Damages by JuryWaiver of RightStatute.
Under Rev. Laws, sec. 5226, providing that trial by jury may be waived by failure to demand the same at
or before the time for trial, where condemnation proceedings were set for hearing on defendant's motion,
and he did not demand a jury, and the case was continued until the order setting it for hearing was vacated,
application being thereafter made by plaintiff for an order appointing commissioners to fix damages, at
which time defendant requested that a jury be called to determine compensation, whereupon the court
entered an order that a jury be called, its action was proper, since, when the order vacating the setting of the
case for trial was entered, the case was left in the status in which it was before set for trial, and defendant's
right to a jury was revived.
5. TrialRight to Open and CloseCondemnation Proceedings.
The party who has the burden of proof is universally allowed to open and close, and such burden, in
condemnation proceedings to assess damages, was upon the defendant; moreover, under Rev. Laws, sec.
5210, providing that, unless the judge for special reasons otherwise directs, the plaintiff must commence
and may conclude the argument, the matter was within the discretion of the court, and, in the absence of
showing of abuse, its ruling permitting the defendant to open and close should not be disturbed.
6. Eminent DomainAssessment of Leasehold InterestStatute.
Under Rev. Laws, sec. 5616, providing that the tribunal entertaining condemnation proceedings must
ascertain and assess the value of each and every separate interest in the realty, where there was a leasehold
interest in defendant's ranch, a right of way over which plaintiff was seeking to condemn, it was
unnecessary for the jury to assess such interest where the plaintiff had purchased the interest from the
lessee.
7. Eminent DomainCondemnation ProceedingsTaking of EasementInstruction.
In condemnation proceedings to take a right of way for an electric power line, an instruction that the
property sought to be taken was an easement was proper where the prayer of the complaint designated the
right sought to be acquired as an easement, and statute defined it as such.
38 Nev. 311, 313 (1915) Truckee River Gen. Elec. Co. v. Durham
8. Appeal and ErrorReservation of Grounds of ReviewObjection to
EvidenceSufficiency.
An objection to testimony as to value of land that the witness is not qualified to show that he is entitled
to give his opinion as to the market value of this ranch was insufficient to raise on appeal the objection
that he must first state the facts on which he based his opinion.
9. Eminent DomainCondemnation ProceedingsDamageEvidence.
In condemnation proceedings for an electric power line, where the evidence of defendant's witnesses as to
damages was shown by cross-examination to have been based upon the erroneous assumption that the
plaintiff would have the right to fence the right of way sought to be condemned, and to do with it as it
pleased, such evidence was insufficient as a basis to fix damages.
10. Eminent DomainCondemnation ProceedingsEvidenceOffer for Property.
In condemnation proceedings, testimony of a mere offer for the land was inadmissible on issue of
damage; since such testimony can be easily fabricated.
11. Eminent DomainCondemnation ProceedingsInstruction.
In condemnation proceedings for a right of way for electric power line, an instruction alluding to the
severance of the land sought to be condemned from that not sought to be condemned was improper, as
conveying to the jury the erroneous idea that the right of way could be fenced, and the defendant deprived
of its use.
12. Eminent DomainEstoppel to AppealPayment of judgment into Court.
In condemnation proceedings, where the jury assessed the compensation for the land taken at $11, and
the damages at $600, plaintiff paying the $11 into court, such payment of such part of the judgment did not
estop it to appeal from the assessment of damages.
13. Eminent DomainCondemnation ProceedingsCosts.
In condemnation proceedings, where the defendant's demand of damages in his answer is so unreasonable
as to justify a fair-minded plaintiff in litigating the question, the court should not grant defendant's request
for judgment for costs accruing after the filing of the answer.
Appeal from Second Judicial District Court, Washoe County; John S. Orr, Judge.
Condemnation proceedings by the Truckee River General Electric Company against F. E.
Durham. From a judgment assessing defendant's damages in the sum of $600, plaintiff
appeals. Reversed, and new trial granted, and the trial court directed to vacate an order as
to costs appealed from.
38 Nev. 311, 314 (1915) Truckee River Gen. Elec. Co. v. Durham
and the trial court directed to vacate an order as to costs appealed from.
Cheney, Downer, Price & Hawkins, for Appellant:
The proceeding should have been continued under the act of 1907, p. 279, under which it
was commenced, without a jury. (Shelan County v. Navarre, 80 Pac. 845; Lewis on Eminent
Domain, 2d ed. vol. 1, 26, 27.)
Even if the further proceedings should have been under Rev. Laws, 1912, defendant
waived his right to have a jury ascertain and assess the matters and things provided by Rev.
Laws, sec. 5616. (Rev. Laws, sec. 5226; Shelan County v. Navarre, supra.)
A general constitutional provision guaranteeing the right of trial by jury does not apply to
condemnation proceedings. (Portmeuf Irr. Co. v. Budge, 100 Pac. 1046; Tegeler v.
Schneider, 114 Pac. 288.)
Each and every separate estate or interest, and the value of each and every separate estate
or interest, must, under the statute, be ascertained and separately assessed. The court refused
to permit the jury to perform its duty under the statute. The statute must be followed in this
respect. (D. & G. Co. v. Stark, 26 Pac. 779; Pueblo & A. V. R. Co. v. Rudd, 5 Colo. 270; Rev.
Laws, sec. 5222; Lewis on Eminent Domain, 2d ed. vol. 2, 2483; 15 Cyc. 790.)
Three elements of compensation enter into the proceedings: (1) for the land and property
rights acquired, (2) benefit to the property not taken, (3) damage to the property not taken.
The three elements must be ascertained and determined. Evidence as to benefit was offered
and admitted in the proceeding; there was no attempt by defendant to show by any evidence
whatever that there were no benefits to be ascertained and assessed. The testimony as to
benefit was not contradicted. The court erred in permitting the defendant and his witnesses to
testify, over the objection of plaintiff, that such witnesses had not shown sufficient or any
qualifications to entitle them to give an opinion as to the value or damage. (Lewis on Eminent
Domain, 2d ed. vol. 2, secs. 436, 437; Lee v. Clute, 10 Nev. 149
38 Nev. 311, 315 (1915) Truckee River Gen. Elec. Co. v. Durham
Lee v. Clute, 10 Nev. 149; San Diego L. & T. Co. v. Neale, 25 Pac. 977; Butch v. Smith, 90
Pac. 61; Friday v. Penn. R. Co., 54 Atl. 339; Kay v. Glade Creek R. Co., 35 S. E. 973;
Cincinnati G. T. Co. v. Wilson, 73 S. E. 306; Cranford Paving Co. v. Baun, 24 S. E. 906;
Westford E. & P. Co. v. Read, 94 N. Y. Supp. 551; Tel. Co. v. Katkamp, 103 Ill. 420.)
That the verdict is excessive, we cite Postal Tel. Co. v. Peyton, 52 S. E. 803, 3 L. R. A. n.
s. 333, and note; Ill. Tel News. Co. v. Neine, 90 N. E. 230; St. L. & C. R. Co. v. Postal Tel.
Co., 51 N. E. 382; Oregon S. L. R. Co. v. Postal Tel. Co., 111 Fed. 842.
Benjamin Curler and Summerfield & Richards, for Respondent:
There is no distinction in cases of this kind between the securing of an easement and
obtaining title to land under condemnation proceedings. (Hymen v. Blake, 19 Cal. 995;
Hollingsworth v. Des Moines R. R. Co., 63 Iowa, 443; Robbins v. St. Paul R. R. Co., 22
Minn. 286; Bischoff v. N. Y. R. Co., 138 N. Y. 257; Atchison R. Co. v. Davenport, 65 Kan.
206; 15 Cyc. 646.)
The opinions of witnesses as to the amount of damages were admissible. (Jones on
Evidence, sec. 388; Tex. Ry. Co. v. Kirby, 44 Ark. 103; Spear v. Comm., 113 Ill. 632; Snow v.
Boston Ry. Co., 65 Me. 230; Swan v. Middlesex, 101 Mass. 173; Dawson v. Pittsburg, 159
Pa. St. 317.)
By the Court, Coleman, J.:
[1] This is a special proceeding, instituted in April, 1911, by the appellant, to condemn a
right of way across respondent's ranch for a power line, pursuant to An act to regulate the
exercise of the right of eminent domain, being chapter 128, p. 279, Stats. 1907. As provided
by the act mentioned, both the complaint and answer contain the names of commissioners
proposed to be appointed to assess compensation and damages. After the pleadings were
settled, and before trial, the eminent domain act as embodied in chapter 66 of the Revised
Laws of 1912 went into effect.
38 Nev. 311, 316 (1915) Truckee River Gen. Elec. Co. v. Durham
The act of 1907 provided that the compensation and damages for the taking of property
should be fixed by commissioners, while section 5624, Revised Laws, reads:
Except as otherwise provided in this chapter [66 on Eminent Domain], the provisions of
this act relative to civil actions, new trials, and appeals shall be applicable to and constitute
the rules of practice in the proceedings in this chapter.
Section 5818, Revised Laws, provides:
The repeal of a law by this act shall not affect any act done, ratified or confirmed, or any
right accrued or established, or any action, suit or proceeding commenced or had in a civil
case, before the repeal takes effect, but the proceedings in such case shall, as far as
practicable, conform to the provisions of this act.
Section 5199, Revised Laws, provides:
An issue of fact shall be tried by a jury, unless a jury trial is waived. * * *
There is no provision in chapter 66, relating to eminent domain, which provides rules of
practice in the matter of assessing compensation and damages for property condemned;
therefore the trial court was justified in calling a jury (Wilmington Canal & Res. Co. v.
Manuel Dominguez, 50 Cal. 505), since the general rule against a retrospective construction
of a statute does not apply to statutes relating merely to remedies and modes of procedure (36
Cyc. 1213.)
[2] There can be no question but that the legislature may delegate to a jury the power of
fixing the compensation and damages, since the constitution of the state is silent as to the
method of determining these matters. (V. & T. R. R. Co. v. Elliott, 5 Nev. 358; State v. Rapp,
39 Minn. 65, 38 N. W. 926; Lewis on Eminent Domain, 3d ed. secs. 374, 510.)
[3] It is contended by appellant: (1) That, since these proceedings were commenced when
the act of 1907 was in force, the question of compensation and damages must be determined
by commissioners, as in that act provided; and (2) that, if respondent was entitled to a jury, he
waived the right by his conduct.
38 Nev. 311, 317 (1915) Truckee River Gen. Elec. Co. v. Durham
The first contention is apparently based upon the ground that a special statute enacted for a
special purpose (as was the act of 1907), when complete in itself, is not repealed, modified, or
amended by a subsequent general statute. (36 Cyc. 108.) We do not think the general rule is
applicable to the case at bar, because of the fact that the act of 1907 is expressly repealed by
chapter 66 of the Revised Laws, and an entirely new law on the subject is enacted.
[4] As the second contention, section 5226, Revised Laws, provides, inter alia, that:
Trial by jury may be waived by the several parties * * * in the manner following: 1. By
failing to demand the same at or before the time the cause is set for trial.
The record shows that on January 27, 1912, the court set the proceedings for hearing, on
motion of defendant, for February 7, 1912, and that defendant did not demand a jury. Had the
case been tried on that date, it is clear that defendant would be held to have waived his right
to a jury trial for having failed to demand one on January 27, the time the case was set. (24
Cyc. 163.) The trial of the case was continued from time to time until March 7, on which day
the order setting the case was vacated, counsel for both sides being in court. Thereafter
application was made by plaintiff for an order appointing commissioners to fix the amount of
compensation and damages, at which time defendant requested that a jury be called to
determine the compensation, after which the court entered an order that a jury be called. We
are of the opinion that when the order vacating the setting of the case for trial was entered,
leaving the case in the status it was before it was ever set for trial, defendant's right to a jury
was revived. (Smith v. Redmond, 141 Iowa, 105, 119 N. W. 271.)
[5] While error is assigned to the ruling of the court in allowing the defendant the opening
and the closing of the proceedings, the matter is not argued, nor are authorities cited in
support of the assignment. It is said, however, in appellant's brief, that:
It is well settled, in eminent domain proceedings, * * * that the burden of the amount to
be paid was upon the defendant."
38 Nev. 311, 318 (1915) Truckee River Gen. Elec. Co. v. Durham
* * * that the burden of the amount to be paid was upon the defendant.
Lewis on Eminent Domain (3d ed.), at section 645, says:
On the trial of the question of damages, the right to open and close the case is in the
owner of the land to be taken or damaged.
It may be said to be a universal practice in Nevada to allow the party who has the burden
of the case to open and close, and there can be no doubt but that the burden was upon the
respondent in these proceedings. But it seems to us that under our statute it was a matter of
discretion in the court, and, if that discretion was not abused, the ruling of the court allowing
respondent to open and close should not be disturbed. Section 5210, Revised Laws, provides,
inter alia, that:
When the jury has been sworn, the trial must proceed in the following order, unless the
judge, for special reasons, otherwise directs: 1. * * * 2. The plaintiff and defendant shall then,
each respectively, offer the evidence upon his part. 3. * * * 4. When the evidence is
concluded, * * * the plaintiff must commence and may conclude the argument.
So it appears that, while the statute provides which party shall open and close, the court is
clothed with authority to vary the order. We think the court was justified in allowing the
defendant to open and close the case.
[6] It is urged that the court should have submitted to the jury a question in plaintiff's
demand for special findings by the jury as to the estate held by one Stevenson, and the
amount which he was entitled to receive. Since section 5616 of the Revised Laws provides
that the tribunal hearing the matter must ascertain and assess the value of each and every
separate interest in the realty, we are of the opinion that the jury should have been allowed to
assess the leasehold interest of Stevenson, had it not been for the fact that plaintiff had
purchased the right of way from Stevenson, so far as he had any. Stevenson had no right
which was being invaded, and therefore there was nothing to determine as to him.
38 Nev. 311, 319 (1915) Truckee River Gen. Elec. Co. v. Durham
therefore there was nothing to determine as to him. Plaintiff, having bought the right which
he had, would be the party in interest, but it certainly could not get a judgment against itself.
The court did not err in its ruling.
[7] Appellant complains of instruction No. 12, which informed the jury that the property
sought to be taken in this action by the plaintiff from the defendant is an easement, which, it
contends, is an erroneous statement of the law under the pleadings. Plaintiff's complaint
alleged that it has become necessary that plaintiff should acquire, take, appropriate, and
condemn to its own sole and exclusive use a right of way for the purposes aforesaid, * * *
said right of way so required and sought to be acquired to be 25 feet in width on either side
from and parallel with the center line thereof (line for transmission of power, light and heat)
as surveyed and staked upon the ground. In the prayer of the complaint the right sought to be
acquired is designated as an easement, and the statute defines it as an easement. No
prejudicial error was committed in giving the instruction.
[8] It is urged that the court erred in admitting the evidence of certain witnesses who
testified as to the value of the lands of defendant. The following, appearing on page 323 of
the record, is a sample of the objections made in the lower court:
Mr. HawkinsObject to the question on the ground that the witness is not qualified to
show that he is entitled to give his opinion as to the market value of this ranch.
Appellant contends here that before a witness can be said to be qualified to give his
opinion as to the value of the land he must first state the facts on which he bases his opinion.
Suffice it to say that the objection made in the lower court was too general to justify this court
in considering this assignment of error. To lay the basis for its presentation to this court, the
vice now complained of should have been pointed out specifically in the court below. (State
v. Clark, 36 Nev. 485, 135 Pac. 1083.)
[9] Defendant called several witnesses by whom he sought to establish his damages.
38 Nev. 311, 320 (1915) Truckee River Gen. Elec. Co. v. Durham
sought to establish his damages. After they had given their opinion on direct examination as
to the damages, each of them stated on cross-examination that he based his estimate as to the
damages upon the assumption that plaintiff would have the right to fence the 50-foot right of
way and do with it as it pleased, while, in fact, its use of the right of way would be limited to
the maintenance of its transmission line. Defendant testified, in fixing the damages:
I arrive at it from the damage it would be to the place to take that much out of the center
of it [the ranch].
That the testimony as to the damages was based upon an erroneous conception of the facts
is clear, and consequently valueless as a basis to fix the damages. And it is evident that in
fixing the damages at $600 the jury entirely disregarded the testimony of the witnesses for
plaintiff, one of whom testified that the transmission line would be a benefit to the ranch, and
none of whom fixed the damages at over $80.
Testifying to amounts of damages where there is no basis of damages is of no value as
evidence. (Telegraph Co. v. Katkamp, 103 Ill. 420; St. Louis & C. R. Co. v. Postal Tel. Co.,
173 Ill. 508, 51 N. E. 390.)
[10] Appellant complains of the ruling of the court in permitting the defendant to give
testimony of an offer which he had received for his ranch as a basis for the assessing of
damages. Speaking of the testimony of an offer for land as fixing a basis for a valuation, the
Supreme court of Kansas said:
We can find no case, nor can we recall any principle, that would permit the proof of an
offer for property as tending to show the value. It is a kind of proof that is so easily
manufactured that its admission would be too dangerous to be tolerated. For the error in
admitting this testimony the case must be reversed, and a new trial awarded. (St. Joseph R.
Co. v. Orr, 8 Kan. 419, page 283 of replication.)
To the same effect, see City of Santa Ana v. Harlin, 99 Cal. 538-544, 34 Pac. 224; Lewis
on Eminent Domain (3d ed.), sec. 666; Keller v. Paine, 34 Hun (N. Y.) 177.
38 Nev. 311, 321 (1915) Truckee River Gen. Elec. Co. v. Durham
Since such testimony can be so easily manufactured, and since it is so easy to show the
value of property by testimony of unquestionable character, every reason exists why
testimony of an offer for property should not be received.
[11] It is urged that the court erred in certain of the instructions given. We think that
subdivision b in instruction No. 1 may have been misleading to the jury, in that it alludes to
the severance of the land sought to be condemned from that not sought to be condemned. It
may have given the jury the idea that the right of way could be fenced by the plaintiff, and the
defendant deprived of the use of it, which is not the case.
The jury rendered a verdict for defendant for the land actually taken by plaintiff for the
placing of its poles in the sum of $11, and fixed defendant's damages at $600, and judgment
was rendered accordingly. Appellant paid the $11 into court, and appeals from that portion of
judgment assessing the damages at $600, for the reason that it is excessive, as well as for
reasons heretofore considered. Since the case must be reversed, we need not consider the
assignment as to the judgment being excessive, as the evidence may differ somewhat at
another trial from what it was at the last one.
[12] Respondent contends that appellant is estopped from appealing, since it paid that
portion of the judgment fixing the value of the land taken for poles. Cases are appealed and
reversed for the correction of errors. If appellant does not contend that the lower court
committed error in rendering judgment for $11, and there being no cross-error assigned by
respondent, that question is out of the case, and appellant should not be precluded from
appealing from a ruling which is erroneous merely because both parties admit that another
ruling is right. This identical question was before this court in Lake v. Bender, 18 Nev. 361, 4
Pac. 711, 7 Pac. 74, where respondent's theory was repudiated, and we think properly. See,
also, San Diego L. & T. Co. v. Neale, 78 Cal. 63, 20 Pac. 372, 3 L. R. A. 83; In Re Everts's
Estate, 163 Cal. 449, 125 Pac. 1058.
[13] Appellant complains of the order of the court in assessing all of the costs of the
proceedings to it.
38 Nev. 311, 322 (1915) Truckee River Gen. Elec. Co. v. Durham
in assessing all of the costs of the proceedings to it. It is our opinion that in assessing costs in
these proceedings the court should take into consideration the reasonableness of the valuation
placed upon the land by the defendant in his answer and the amount of damages claimed. If
the demand is so unreasonable as to justify a fairminded person in litigating the question,
small consideration should be paid to his request for judgment for the costs which accrued
after the filing of the answer in the case. Since the case must be tried anew, we will make no
order as to costs.
Case No. 2063 is an appeal form an order as to costs made after final judgment. In view of
the fact that case No. 2047 must be reversed, it necessarily follows that the order from which
this appeal is taken must also be set aside.
In case No. 2047 it is ordered that the judgment be reversed, and that a new trial be
granted, and in No. 2063 the trial court is directed to vacate the order appealed from.
Norcross, C. J.: I concur.
[McCarran, J., having been at one time an attorney for one of the parties, did not
participate in the consideration of the case.]
____________
38 Nev. 323, 323 (1915) State v. District Court
[No. 2175]
STATE OF NEVADA, Ex Rel. GEO. B. THATCHER, Attorney-General, Petitioner, v.
DISTRICT COURT OF THE SIXTH JUDICIAL DISTRICT OF THE STATE OF
NEVADA IN AND FOR THE COUNTY HUMBOLDT, Et Al., Respondents.
[149 Pac. 178]
1. ProhibitionRight to ReliefAdequate Remedy.
Prohibition is an extraordinary remedy which is available only in cases of extreme necessity to restrain a
court from proceeding in a matter over which it has no jurisdiction, and where there appears no adequate
remedy by appeal.
2. ProhibitionRight to ReliefAdequate Remedy.
Where a district court had granted a temporary injunction against taxing officers of the county and state,
and had overruled the attorney-general's demurrer to the complaint, the latter had an adequate remedy
under Rev. Laws, sec. 5143, authorizing a motion to set aside the temporary injunction, and Rev. Laws,
sec. 5329, giving an immediate appeal from an order refusing such motion, so that he cannot maintain
prohibition, even though the public interests are so great that he cannot rest on his demurrer and appeal
from the judgment thereon, thereby losing his right to plead to the merits.
Original petition for prohibition by the State, on the relation of Geo. B. Thatcher,
Attorney-General, against the District Court of the Sixth Judicial District of the State of
Nevada in and for the County of Humboldt, and others. Order of prohibition denied. Petition
dismissed.
Geo. B. Thatcher, Attorney-General, for Petitioner:
The writ of prohibition will issue when any proceedings of the lower court are either
without or in excess of the jurisdiction of such tribunal, and there is no plain, speedy and
adequate remedy in the ordinary course of law. (Rev. Laws, secs. 5708, 5709; Golden v.
Averill, 31 Nev. 250; Bell v. District Court, 28 Nev. 280; Gordon v. District Court, 36 Nev.
1.)
Hoyt, Gibbons & French, for Respondents:
The question of the jurisdiction of the lower court over the subject-matter is not the sole
test of the jurisdiction of the supreme court to issue a writ of prohibition.
38 Nev. 323, 324 (1915) State v. District Court
of the supreme court to issue a writ of prohibition. In addition thereto it must appear that the
party complaining has no plain, speedy, and adequate remedy at law. (Rev. Laws, sec. 5709;
Silver Peak Mines v. Second Jud. Dist. Court, 110 Pac. 503; Shubach v. McDonald, 179 Mo.
182, 65 L. R. A. 136; State v. Spokane Co. Su., Ct., 82 Pac. 877.)
By the Court, McCarran, J.:
This is an original proceeding in prohibition. Petitioner hereby seeks to obtain an order of
this court prohibiting respondent, the Sixth judicial district court, from proceeding with the
trial and determination of an action instituted by certain taxpayers of Humboldt County to
enjoin certain of the county officers of Humboldt County, and certain state officers, from the
performance of certain acts relative to the collection of taxes.
A temporary injunction was issued by the respondent court at the time of the filing of the
complaint in the proceeding below. A demurrer being interposed to the complaint by
petitioner herein, certain questions pertaining to the jurisdiction were thereby raised, as were
also questions as to the sufficiency of the complaint to state a cause of action. This demurrer
was overruled by the court below; and by reason of said action on the part of that tribunal,
petitioner comes here with a prayer for prohibition. To the petition filed in this court, a
demurrer was interposed by respondent, which demurrer presents the question of the
sufficiency of the allegations of the petition to entitle petitioner to the relief demanded. Of the
numerous questions raised by the demurrer, we deem it only necessary to determine one.
[1] This court, as well as other courts, has held that a writ of prohibition, being one of an
extraordinary nature, will issue only in cases of extreme necessity, to restrain a court from
proceeding in a matter over which it has no jurisdiction and where there appears no adequate
remedy by appeal. (Low v. Crown Point Mining Co., 2 Nev. 75; Turner v. Langan, 29 Nev.
281, 88 Pac. 1088; Bell v. District Court, 2S Nev. 2S0
38 Nev. 323, 325 (1915) State v. District Court
Court, 28 Nev. 280, 81 Pac. 875, 1 L. R. A. n.s. 843, 113 Am. St. Rep. 854, 6 Ann. Cas. 982;
Walcott v. Wells, 21 Nev. 51, 24 Pac. 367, 9 L. R. A. 59, 37 Am. St. Rep. 478; High on
Extraordinary Legal Remedies, 765; People v. Westbrook, 89 N. Y. 152; State v. Cory, 35
Minn. 178, 28 N. W. 217.)
[2] In a proceeding in prohibition such as this, the primary question to be determined,
where such is raised, is the existence or nonexistence of an adequate remedy by appeal.
Petitioner in this proceeding contends that this being a case where a question of great
public importance, relative to the revenues of this state, is involved, the rule supported by the
authorities cited above is not applicable. It is the contention of petitioner that, in view of the
importance and nature of the case in the court below, he would not be justified, however
confident of his position as to the law, in resting upon the demurrer alone, permitting the case
to go to judgment upon failure to answer, and rely solely upon appeal from the judgment, for
the reason that, if this court should not sustain his position as to the law of the case, the state
and Humboldt County would then be debarred from filing an answer and offering evidence in
support of issues raised by the pleadings. However true this may be, it does not follow that
petitioner did not have, or has not now, an adequate remedy by appeal, which would have
permitted a speedy determination of every question sought to be raised in this proceeding,
without jeopardizing any rights of petitioner or of the interests represented by him in the court
below.
The record discloses an injunction pendente lite issued by the trial court at the time of the
filing of the complaint therein. The right to move to set aside an order granting an injunction
pendente lite is prescribed by statute. (Rev. Laws, 5143.)
It appears clear to our minds that petitioner, representing the state and county as
defendants in the proceeding instituted in the lower court, could have moved to set aside the
preliminary injunction at the time of filing the demurrer, and, so far as we are advised, can
now move to set the same aside upon the same grounds as those relied upon in the
demurrer interposed to the complaint in the court below, or upon additional grounds,
should such suggest themselves.
38 Nev. 323, 326 (1915) State v. District Court
demurrer, and, so far as we are advised, can now move to set the same aside upon the same
grounds as those relied upon in the demurrer interposed to the complaint in the court below,
or upon additional grounds, should such suggest themselves. An order refusing to set aside
the injunction becomes at once appealable in advance of the trial upon the merits. (Rev.
Laws, 5329; State v. Ducker, 35 Nev. 214, 127 Pac. 990; Stats. 1913, p. 113.)
Hence it follows that the ordinary course of legal procedure, prescribed by our statute and
upheld by this court, affords an adequate remedy, and one which is plain and speedy as well,
and hence negatives the right of petitioner to the writ of prohibition.
It therefore follows that the order prayed for should be denied, and the petition be
dismissed.
It is so ordered.
____________
38 Nev. 326, 326 (1915) In Re Roberson
[No. 2168]
In the Matter of the Application of GEORGE OLIVER ROBERSON
for a Writ of Habeas Corpus.
[149 Pac. 182]
1. Habeas CorpusExtraditionFugitive from Justice.
A person sought to be extradited may show upon a proceeding in habeas corpus that he is not a fugitive
from justice.
2. ExtraditionPlace of Commission of OffenseFugitive from Justice.
A person must be within the state at the time of the commission of the acts constituting the offense for
which he is sought to be extradited in order to become a fugitive from justice.
3. ExtraditionFugitive from JusticeWife Abandonment.
Petitioner in habeas corpus was married in the state to which he was sought to be extradited. He was a
minor and was dependent upon his father for support. After the marriage defendant and his wife separated
voluntarily, the wife going back to live with her mother. When petitioner left the state he had no intention
of separating from his wife, or of abandoning her. Held, that he was not a fugitive from justice within the
law of extradition upon the charge of wife abandonment in the state of his marriage.
Application by George Oliver Roberson for a writ of habeas corpus. Writ granted, and
petitioner discharged, George Springmeyer, for Petitioner:
38 Nev. 326, 327 (1915) In Re Roberson
George Springmeyer, for Petitioner:
Petitioner is not a fugitive from the justice of the State of North Carolina, in that he is not
legally married. (Section 2088, Rev. Laws N. C. 1905; section 1560, Id.)
Venue must be laid in the county in which the crime is alleged to have been committed. (State
v. Patterson, 5 N. C. 443; State v. Pray, 30 Nev. 206, 208.) A crime committed in one county
or district cannot be tried in another county. (Ex Parte Kuhns, 36 Nev. 487, 137 Pac. 83; Ex
Parte Smith, 35 Nev. 30; Eureka County Bank Cases, 35 Nev. 80.)
The crime is committed and the venue may be laid only in the county where the
parties lived together as husband and wife, and where the husband separated from or left his
wife. (State v. Justus, 85 Minn. 114, 88 N. W. 415; People v. Sagazei, 59 N. E. 1031;
Cuthbertson v. State, 101 N. W. 1031; State v. Shuey, 74 S. W. 369.) Abandonment must be
physical, and not merely constructive. (Milbourne v. State, 161 Ind. 364, 68 N. E. 684;
People v. Wexler, 136 N. Y. S. 679; People v. Flury, 173 Ill. App. 640.)
Sweeney & Morehouse, Geo. B. Thatcher, Attorney-General, and E. T. Patrick, Deputy
Attorney-General, for Respondent:
The laws of North Carolina make it a criminal offense for a man to abandon his wife and
child. This court has no right to pass upon the guilt or innocence of petitioner. The questions
of venue and jurisdiction should not be confused.
A fugitive from justice is one who, having within a state committed a crime against its
laws, when he is sought to be submitted to its criminal process to answer for his offense, has
left its jurisdiction and is found within the territory of another state. (Ex Parte Dixon, 69 S.
W. 943; State v. Richter, 37 Minn. 436; In Re Voorhies, 32 N. J. L. 141; People v. Pinkerton,
17 Hun, 199; Johnson v. Ammons, Ohio Dec. Am. Law Record, 747; Ex Parte Van Vleck, 6
Id. 636; Coleman v. State, 53 Tex. Crim. 93; Brun v. Rayner, 124 Fed. 481.)
38 Nev. 326, 328 (1915) In Re Roberson
By the Court, McCarran, J.:
This is an original proceeding in habeas corpus.
Petitioner relates, among other things, that he is unlawfully imprisoned, detained,
confined, and restrained of his liberty by J. H. Stern, as sheriff of Ormsby County, Nevada,
and J. D. Hillhouse, as chief of police of the city of Reno, Washoe County, Nevada, and by J.
C. Crawford, as sheriff of Martin County, State of North Carolina, who has been deputized
and appointed by the governor of the State of North Carolina as the agent of that state for the
purpose of taking and carrying petitioner from the State of Nevada to the State of North
Carolina.
Petitioner relates that he is a citizen and resident of the State of Nevada; and the admitted
facts are that on the 25th day of February, 1915, the governor of the State of Nevada made
and executed an executive warrant, pursuant to a requisition issued by the governor of North
Carolina; such requisition declaring petitioner to be a fugitive from justice from that state, by
reason of the fact that the grand jury of the superior court of Martin County, N. C. had filed
an accusation in that court, wherein petitioner was charged with the crime of having deserted
his wife and child in said county of Martin, State of North Carolina.
The accusation as filed by the grand jury of Martin County, in part is as follows:
The jurors for the state upon their oath present: That Ollie Roberson, late of the county of
Martin, on the _____ day of December, in the year of our Lord one thousand nine hundred
and thirteen, with force and arms, at and in the county aforesaid, unlawfully and willfully did
abandon his wife, one Lucy Roberson, without providing adequate support for her, the said
Lucy Roberson, and the child which he, the said Ollie Roberson, left on the care of his said
wife, had heretofore begotten contrary to the form of the statute in such case made and
provided, and against the peace and dignity of the state; and the jurors aforesaid, upon their
oath aforesaid, do further present: That the said Ollie Roberson, late of the county of Martin,
then on the _____ day of December, 1913, at and in the county aforesaid, while living with
his wife, one Lucy Roberson, continually from said last-mentioned day, while so living
with his wife to the time of taking this inquisition, unlawfully and willfully did omit,
neglect and refuse to provide adequate support for his said wife, the said Lucy Roberson,
and did fail to support her and the child which he, the said Ollie Roberson, upon the body
of his said wife had begotten."
38 Nev. 326, 329 (1915) In Re Roberson
and in the county aforesaid, while living with his wife, one Lucy Roberson, continually from
said last-mentioned day, while so living with his wife to the time of taking this inquisition,
unlawfully and willfully did omit, neglect and refuse to provide adequate support for his said
wife, the said Lucy Roberson, and did fail to support her and the child which he, the said
Ollie Roberson, upon the body of his said wife had begotten.
It appears from the record that petitioner was arrested by J. D. Hillhouse, chief of police of
the city of Reno, upon the executive warrant of the governor of this state, and thereafter, by
some proceeding, the nature of which is unknown to us, was admitted to bail; and later,
having come into Ormsby County, surrendered himself to the sheriff of this county and sued
out this writ.
It is suggested by counsel for respondent in this case that petitioner is not entitled to
invoke the writ of habeas corpus, for the reason that he is in custody of his own voluntary act
in having surrendered to the sheriff of this county. However that may be, even though we
should hold this point well taken, petitioner would be entitled to institute original proceedings
in the court against any one in whose custody he might hereafter be held, until the merits of
the matter involving the legality of the proceedings under which and by reason of which he
was restrained of his liberty had been finally determined by this court. Hence, a holding by
this court at this time to the effect that petitioner was not entitled to the writ by reason of the
fact that he was in voluntary custody would only entail additional proceedings and thus delay.
For this reason, we have concluded that a decision upon this suggested phase is not essential.
This court has in the past established a rule that a person held upon an executive warrant
may, upon habeas corpus proceedings, show that he is not a fugitive from justice; and upon
such showing being made, we have held that he is entitled to be discharged.
In the Eureka Bank Cases, 35 Nev. 80, 126 Pac. 655, 129 Pac. 308, this court said:
After all, should not the controlling question be whether there is any probable cause or
evidence to indicate that the accused has committed any act within the jurisdiction of the
court, which the law makes criminal, or is there anything for it to try, or any evidence
available to the state which would indicate the commission of an offense or sustain a
conviction?
38 Nev. 326, 330 (1915) In Re Roberson
there is any probable cause or evidence to indicate that the accused has committed any act
within the jurisdiction of the court, which the law makes criminal, or is there anything for it
to try, or any evidence available to the state which would indicate the commission of an
offense or sustain a conviction? Under our statute, with its liberal provision for taking
testimony and for the examination of the merits of the case, we see no reason why we should
not investigate it to the bottom and discharge any of the petitioners, if justice requires, or if it
is clear that they have not committed any acts within the county or the jurisdiction of the
court, which the law makes criminal.
Again, in the case of Ex Parte Kuhns, 36 Nev. 487, 137 Pac. 83, 50 L. R. A. n. s. 507, we
referred to the Eureka Bank cases approvingly, and held that a person who was not within a
demanding state at the time an alleged crime was committed could not be a fugitive from
justice, unless he be an accessory.
In the case at bar, it is the contention of petitioner, and his contention in this respect is
borne out by the testimony of his wife, that he never lived with his wife in Martin County, N.
C. The facts disclosed by the testimony of the wife of petitioner are to the effect that they
were married on the last day of June, 1913, by a justice of the peace, near Williamston, in
Martin County, N. C.; that the marriage took place between 7 and 8 o'clock in the morning;
that immediately after the marriage the couple went by automobile from the residence of the
justice of the peace to the town of Williamston, boarded a train at that place, and continued
on to Raleigh, Wayne County, N. C., and there continued to live together as man and wife
until December 17, 1913, on which date petitioner, according to his wife's testimony, went to
Hamlet, N. C.; and on the following day, to wit, December 18, his wife left their former place
of abode in Raleigh and returned to the home of her mother and grandfather, with whom she
had lived prior to the marriage in Martin County, North Carolina.
Testimony of the wife of petitioner also discloses that prior to his departure from Raleigh
for Hamlet, petitioner employed a physician in the city of Raleigh for the benefit of his
wife, she being shortly to be delivered of a child.
38 Nev. 326, 331 (1915) In Re Roberson
employed a physician in the city of Raleigh for the benefit of his wife, she being shortly to be
delivered of a child.
With reference to her leaving Raleigh on the 18th of December, the day following the
departure of her husband, Mrs. Roberson testified as follows:
Q. You say it was your mother or grandfather who sent you the money with which to
come home? A. My mother.
Q. Will you please, mam, tell me when it was she sent it to you? A. The week before. I
came the next.
Q. Do you mean to say that a week before you came home that your mother had sent you
money to come home on? A. Yes, sir; that is what I mean to say.
Q. Then you knew a week before he left you in Raleigh that you were coming home? A.
Yes, sir; I knew that I intended to.
Taking this testimony, as given by the wife of petitioner, together with petitioner's own
statement under oath in this court, it appears that the separation which occurred on December
17 in Raleigh, Wayne County, N. C., between petitioner and his wife, was a mutual
separation, whether it was at that time intended to be permanent or otherwise. There is
nothing in the testimony of the wife of petitioner, as it is before us, from which we could infer
that her act in separating from petitioner was other than a voluntary one on her part. They had
lived in Raleigh from the date of their marriage, to wit, the last day of June, 1913, until the
17th day of December of the same year. He had attended school to some extent during their
stay in Raleigh.
The testimony of petitioner is to the effect that from Hamlet he went to Poughkeepsie, N.
Y., and there attended school, later coming to Nevada and entering the university of this state,
in which institution it appears he is still enrolled as a student.
From all the facts and circumstances as they are presented by the record, we can come to
no other conclusion than that the separation which took place between petitioner and his wife
on the 17th day of December, 1913, in Raleigh, Wayne County, was an act of mutual
assent, the wife leaving the former abiding place and returning to the home of her parent
and guardian without any intimation, so far as the record discloses, of trouble or discord
occurring between the parties.
38 Nev. 326, 332 (1915) In Re Roberson
in Raleigh, Wayne County, was an act of mutual assent, the wife leaving the former abiding
place and returning to the home of her parent and guardian without any intimation, so far as
the record discloses, of trouble or discord occurring between the parties.
There is a circumstance in the record, as disclosed from the testimony of the wife of
petitioner, which might lead us to believe that petitioner had expected his wife to remain in
Raleigh, at least until after her child was born. This might be inferred, as we have already
said, from the fact that petitioner had engaged a Raleigh physician to attend his wife on the
occasion of her confinement. Whether or not it be a proper inference to draw from this that
petitioner expected his wife to remain in Raleigh is immaterial.
The money on which Mrs. Roberson returned to her former home was, according to her
statement, sent to her by her mother; and it is not unfair to presume, from the record, and
especially from the testimony of the wife of petitioner, that the money was sent to her by her
mother for the very purpose toward which she applied it, namely, to pay her expenses back to
her mother's home. We refer to these facts only to support the conclusion which to us appears
manifest from the record; that the separation between petitioner and his wife was mutual; and
the separation constituting the act of desertion, if desertion it be, occurred in the city of
Raleigh, Wayne County, N. C., and not in Martin County.
It was suggested in the oral argument by attorney for respondent that the jurisdiction of the
superior court of any county in North Carolina was not confined exclusively to matters
occurring within that county, and hence the jurisdictional power of the superior court of
Martin County was sufficient to give that court control over this case, even though the
desertion took place in Wayne County.
It is our judgment that respondent's position in this respect is untenable, in view of the
decision of the superior court of North Carolina in the case of State v. Patterson, et al., 5 N.
C. 443, wherein the court said: "The superior court of one county has no jurisdiction of
criminal offenses committed in another county, although both of the counties belonged to
the same judicial district, before the act of 1S06, ch. 2. * * *
38 Nev. 326, 333 (1915) In Re Roberson
The superior court of one county has no jurisdiction of criminal offenses committed in
another county, although both of the counties belonged to the same judicial district, before the
act of 1806, ch. 2. * * *
The legislature intended to give to the several county superior courts, jurisdiction over the
same offenses and civil matters which the district superior courts had in 1806, limiting the
territory within which that jurisdiction was to be exercised to the county in which the court
was held. In all indictments, it must appear that the offense charged was committed within the
territorial jurisdiction of the court.
It has been held almost uniformly by the courts, in which this subject has been considered,
that only the courts of the state in which the abandonment occurred have jurisdiction. (State
v. Weber, 48 Mo. App. 503; State v. Miller, 90 Mo. App. 131; State v. Shuey, 101 Mo. App.
438, 74 S. W. 369; People v. Flury, 173 Ill. App. 640; People v. Sagazei, 27 Misc. Rep. 727,
59 N. Y. Supp. 701; 21 Cyc.; Ex Parte Kuhns, supra.
While, as we have already stated, the courts have held almost universally that the courts of
the state in which the act of abandonment took place have jurisdiction to try parties accused,
the question as to whether or not a party can be successfully tried and convicted in one
county, where the abandonment admittedly took place in another, has not been before the
courts to such an extent as to crystallize any particular rule relative to jurisdiction.
Notwithstanding this, however, courts in which this matter has been considered have held
quite uniformly that prosecution for the crime of abandonment must take place in the county
where the parties resided at the time of their separation.
Says the Supreme Court of Nebraska, in the case of Cuthbertson v. State, 72 Neb. 727,
101 N. W. 1031:
It is quite immaterial where the first act of separation occurs, if such act is followed by a
wilful refusal to support at the place previously provided by the husband and considered by
them as their home. The county in which the home is fixes the venue of the offense."
38 Nev. 326, 334 (1915) In Re Roberson
the home is fixes the venue of the offense. To the same effect is the case of People v. Vitan
(Ct. Gen. Sess.), 10 N.Y. Supp. 909.
Speaking upon this subject in a case where the state made a similar contention to that
made by respondent here, the Supreme Court of Minnesota said:
If the contention of the state be correct, then the wife may, by taking up her residence in any
county in the state she may elect, make the crime ambulatory, and render the husband guilty
of felony therein, although he may never have been within such county. That she cannot do so
is too obvious to justify any discussion of the proposition, for this case does not fall within
the limited class of cases in which a party may become liable to punishment in a particular
jurisdiction while his personal presence is elsewhere, for example, circulating a libel in a
county in which he is not personally present. (State v. Justus, 85 Minn. 114, 88 N. W. 415.)
Said the court in Commonwealth v. Douglas, vol. 2, Lancaster Law Review, 179, speaking
upon a similar subject:
If she (the wife) voluntarily moves into another county, it does not change his (the
husband's) domicile, or make him a deserter for not following her.
As we have already observed, in the case at bar, the only place where petitioner and his
wife established a domicile, or lived together as man and wife, was in the city of Raleigh,
Wayne County, N. C. The desertion, if any, took place in that city and county. The offense
with which petitioner stands accused by the indictment found in Martin County, North
Carolina, is not a continuing offense, nor one which might be termed transitory or ambulatory
in its nature.
In the case of Ex Parte Waterman, 29 Nev. 288, 89 Pac. 291, 11 L. R. A. n. s. 424, 13
Ann. Cas. 926, this court went at length into the subject of its right to review on habeas
corpus, the sufficiency of the papers on which the executive warrant is issued; and in that
case the court, speaking through Mr. Justice Sweeney, said:
While I believe in paying the highest respect to the requisition warrants of chief
executives of other states, and believe that any executive would hesitate before issuing
his requisition warrant knowingly without believing that sufficient and legal grounds
existed on which to ask the extradition of a defendant, yet my regard for the sacred writ
of habeas corpus is such that I would jeopardize the retention of the good-will of any one
rather than nullify, modify, or limit in any way the prerogatives of this great writthe
greatest bulwark of our libertyand which gives every person under our glorious
government the right to appeal to a judicial tribunal when restrained of his liberty, and
privileged to have the party in whose custody he is detained directed to produce his body,
and show by what right or authority of law he is depriving him of his liberty."
38 Nev. 326, 335 (1915) In Re Roberson
requisition warrants of chief executives of other states, and believe that any executive would
hesitate before issuing his requisition warrant knowingly without believing that sufficient and
legal grounds existed on which to ask the extradition of a defendant, yet my regard for the
sacred writ of habeas corpus is such that I would jeopardize the retention of the good-will of
any one rather than nullify, modify, or limit in any way the prerogatives of this great
writthe greatest bulwark of our libertyand which gives every person under our glorious
government the right to appeal to a judicial tribunal when restrained of his liberty, and
privileged to have the party in whose custody he is detained directed to produce his body, and
show by what right or authority of law he is depriving him of his liberty.
At another place in the opinion, the learned justice said:
If a defendant is unjustly accused, or illegally charged, or restrained of his liberty,
certainly justice demands that he should not be deprived of his liberty or removed hundreds or
thousands of miles, as the case may be, there to wait or be put on trial on an illegal charge.
The sooner his detention, if it be illegal, is so ascertained, the better.
The right of this court to go behind the executive warrant and inquire into the validity of
the papers upon which or by reason of which the executive warrant issued was emphasized in
the case of Ex Parte Waterman, supra. There is no question going to the validity of papers or
proceedings preliminary to the issuance of an executive warrant for one charged as being a
fugitive from justice more vital or significant to the whole proceeding than the jurisdiction of
the court or tribunal out of which the original accusation, information, or indictment issued. If
it be an undisputed fact, such as we deem it in this case, that the court out of which the
indictment issued was and is devoid of jurisdiction to try the petitioner on the accusation thus
filed; if, as a matter of fact, that court, under the rule laid down by the Supreme Court of the
State of North Carolina (State v. Patterson, supra), would be precluded, for want of
jurisdiction, from passing judgment on this defendant on the indictment thus filed, in view of
the fact that the offense, if any, was not committed within the county, in which that court
has jurisdictionwe find ourselves constrained to reassert the rule so ably laid down by
the learned jurist in the case of Ex Parte Waterman, supra, to the effect that justice
demands that the petitioner should not be removed hundreds or thousands of miles, as
the case may be, there to wait the action of a court which must eventually declare its own
lack of jurisdiction.
38 Nev. 326, 336 (1915) In Re Roberson
of the fact that the offense, if any, was not committed within the county, in which that court
has jurisdictionwe find ourselves constrained to reassert the rule so ably laid down by the
learned jurist in the case of Ex Parte Waterman, supra, to the effect that justice demands that
the petitioner should not be removed hundreds or thousands of miles, as the case may be,
there to wait the action of a court which must eventually declare its own lack of jurisdiction.
[1] It is well-settled law that a person sought to be extradited may show upon a proceeding
in habeas corpus that he is not a fugitive from justice. In the recent case of Ex Parte Kuhns,
supra, we held that where the petitioner at the time of leaving the State of Pennsylvania was
not in default under the statute of that state making it a misdemeanor for a husband and
father to desert and neglect to support his wife or child, his subsequent neglect, while a
citizen of another state, to support his family in the demanding state, would not render him a
fugitive from justice therefrom.
[2] Subject to some possible exceptions, within which this character of case does not fall,
it is the general rule that a person must be within a state at the time of the commission of acts
constituting the offense in order to become a fugitive from justice.
Petitioner is indicted under a section of the criminal code of North Carolina (Revisal,
1905, sec. 3355), which provides:
If any husband shall willfully abandon his wife without providing adequate support for
such wife, and the children which he may have begotten upon her, he shall be guilty of a
misdemeanor.
[3] It appears from the evidence introduced upon the hearing of this case without conflict,
that the petitioner was under 18 years of age at the time of his marriage, and is still a minor;
that the petitioner was at such time, ever since has been, and is now, without means and
dependent upon his father for support; that after the marriage, defendant and his wife, who
was near his own age, went to live at Raleigh, where petitioner attended school; that it
was the desire of petitioner's father that petitioner complete his education, and it would
seem to have been the understanding of all parties that petitioner was to complete his
education at his father's expense before assuming the burdens of providing for his family;
that after residing some months at Raleigh, it was mutually agreed between petitioner
and his wife that petitioner should go to Poughkeepsie, N. Y., and continue his studies
there at his father's expense; that at the time of petitioner's departure for Poughkeepsie,
the relations of the parties were harmonious and so continued for some time thereafter;
that at the time petitioner left the State of North Carolina he had no intention of
permanently separating from his wife or abandoning her; that if petitioner formed an
intent to abandon his wife and child, such intent was formed some considerable time after
he had left the State of North Carolina.
38 Nev. 326, 337 (1915) In Re Roberson
age, went to live at Raleigh, where petitioner attended school; that it was the desire of
petitioner's father that petitioner complete his education, and it would seem to have been the
understanding of all parties that petitioner was to complete his education at his father's
expense before assuming the burdens of providing for his family; that after residing some
months at Raleigh, it was mutually agreed between petitioner and his wife that petitioner
should go to Poughkeepsie, N. Y., and continue his studies there at his father's expense; that
at the time of petitioner's departure for Poughkeepsie, the relations of the parties were
harmonious and so continued for some time thereafter; that at the time petitioner left the State
of North Carolina he had no intention of permanently separating from his wife or abandoning
her; that if petitioner formed an intent to abandon his wife and child, such intent was formed
some considerable time after he had left the State of North Carolina.
This case in some respects in sui generis, but from the fact that the petitioner left the State
of North Carolina under the circumstances disclosed without conflict in the evidence, I am of
the opinion that he is not a fugitive from justice within the law of extradition, and is entitled
to his discharge.
From the foregoing it follows that the writ of habeas corpus heretofore issued by this court
should be perpetuated, and that petitioner should be discharged from custody.
It is so ordered.
Norcross, C. J., and Coleman, J.:
We concur in the order, and in so much of the foregoing opinion as holds that petitioner is
not a fugitive from justice.
____________
38 Nev. 338, 338 (1915) Turner Lumber Co. v. Tonopah Lumber Co.
[No. 1898]
TURNER LUMBER COMPANY (A Corporation), Respondent, v.
THE TONOPAH LUMBER COMPANY (A Corporation), Appellant.
[145 Pac. 914]
1. SalesContracts of SaleNegotiations by Letter.
Defendant wrote the S. Company that it would like to contract for 1,000,000 feet of lumber and would
close a contract at that time, the lumber to be cut during the following season and delivered when dry, and
prices to be based on a specified price list then in vogue, and that, if this was satisfactory, it would consider
the matter closed until the cutting started, when it would forward a cutting list. The company replied that it
would furnish the quantity specified to be cut that season and shipped when dry, the prices to be based on
the specified list. Thereafter plaintiff wrote defendant asking for a cutting order, and defendant replied
asking if plaintiff would be in a position to furnish 1,000,000 feet. In response plaintiff wrote defendant
referring to the previous correspondence and stating that it had succeeded the S. Company. Defendant
thereafter sent a cutting order for 700,000 feet. Held, that these letters created a contract between the
parties, as they evidenced a meeting of the minds as to the amount of lumber, the season in which it was to
be cut, and the time of delivery.
2. SalesPerformance of ContractDelay in DeliveryRefusal to Accept.
Defendant contracted to purchase from plaintiff 1,000,000 feet of lumber to be cut during the season of
1907 and delivered when dry, and sent plaintiff a cutting order for 700,000 feet. Plaintiff milled and
manufactured all of the lumber for which the cutting order was given. There was some evidence that
plaintiff was unable to make prompt delivery of specific shipping orders due to climatic conditions and
scarcity of transportation facilities on a railroad; but no complaint as to this was made by defendant, and it
never gave notice of a rescission or cancellation of the contract or did any acts from which a rescission
could be inferred. By reason of defendant's delay in furnishing plaintiff with specifications as to surfacing
and sizing the lumber and to its acts in canceling shipping orders previously given and not reviving such
orders owing to unsettled conditions, plaintiff was delayed in making deliveries, and, to meet the
convenience of defendant, all of the lumber was not delivered during 1907. In 1908, plaintiff wrote
defendant insisting that it take the lumber, and defendant replied stating that plaintiff was unable to take
care of the orders offered it by defendant and that for that reason defendant would ignore plaintiff's letter
and that plaintiff might take any action it might deem fit. Held, that plaintiff did not break the contract by
failing to deliver the lumber during 1907, especially as there was nothing from which a failure to
deliver the lumber when dry could be inferred, while defendant repudiated the
contract by its letter mentioned.
38 Nev. 338, 339 (1915) Turner Lumber Co. v. Tonopah Lumber Co.
was nothing from which a failure to deliver the lumber when dry could be inferred, while defendant
repudiated the contract by its letter mentioned.
3. SalesContracts of SaleTime for Delivery.
Under a contract for the sale of lumber to be cut during the season of 1907 and delivered when dry, the
seller might justifiably have shipped the lumber to the buyer when the lumber was dry without further
shipping orders.
4. Appeal and ErrorReviewErrors Favorable to Appellant.
A party could not complain of the trial court's adoption of an erroneous measure of damages which inured
to its benefit.
ON REHEARING
1. SalesDamagesComputation.
Defendant having repudiated the contract and refused to take the specified quantity of lumber, to save
itself from loss plaintiff was compelled to dispose of the lumber at the best market price obtainable. Held,
that damages should be computed on the basis of the difference between the contract price and the market
price for lumber at or about the date of the repudiation of the contract.
Appeal from Second Judicial District Court, Washoe County; John S. Orr, Judge.
Action by the Turner Lumber Company against the Tonopah Lumber Company. From a
judgment for plaintiff, defendant appeals. Affirmed.
Statement of Facts
The respondent, Turner Lumber Company, plaintiff in the court below, was a corporation
engaged in the wholesale milling and manufacturing of lumber and its various products. Their
mill was located in the vicinity of Sattley, Sierra County, Cal. The members of the
corporation were the Turner Bros. (H. A. Turner, J. M. Turner, and T. K. Turner); and they,
together with others, had formerly been known as the Sunset Lumber Company. Some time
during the latter part of the year 1906, or the first part of the year 1907, they organized a
corporation known as the Turner Lumber Company, which corporation is respondent herein.
The appellant, Tonopah Lumber Company, defendant in the court below, was a corporation
engaged in the business of retailing lumber and its various products in Tonopah, Goldfield,
Rhyolite, Lovelock, and other towns and mining camps in Nevada.
38 Nev. 338, 340 (1915) Turner Lumber Co. v. Tonopah Lumber Co.
and mining camps in Nevada. This action grows out of a contract entered into between the
parties, wherein the contractual relations and the terms of the contract are established by and
contained within a series of letters passing between the parties, as follows:
Dec. 6th
Sunset Lumber Co., Sattley, Cal.Gentlemen: In receiving communication from you we
were given to understand that you had sold out your holdings to the Truckee Lumber
Company. We would like to have you verify this and if same is not the fact would like to
contract with you for a portion of your cut, if not all, for next season. We were very much
satisfied with the class of material you have shipped, together with the pleasant business
relations existing between us.
Yours very truly,
A. R.
Sattley, Sierra Co., Cal., Dec. 24, 1906.
Tonopah Lumber Co., Tonopah, NevadaDear Sirs: In answer to your letter of Dec. 6,
beg to say that while we have sold our timber interests here, the writer, and perhaps all of our
firm, expect to continue in the lumber business in this immediate vicinity, and would be
pleased to contract with you for between 500 M & a million feet, either at the prices quoted in
the Truckee river price list of Sept. 1, 1906, or to be billed according to Truckee river lists at
date of shipment.
Yours very truly, Sunset Lumber Co.,
By Jas. M. Turner.
Tonopah, Nev., December 27-06.
Messrs. Sunset Lumber Co., Sattley, Cal.Gentlemen: We are in receipt on your letter of
December 24th and are pleased to hear that you do not intend to discontinue the lumber
business entirely. We would like very much to enter into a contract with you for 1,000,000
feet or as near that as possible, providing, of course, that you will cut the same quality of
lumber that you did during last year and if agreeable to you, we are willing to close this
contract at the present time, the lumber to be cut during the coming season and delivered
when dry.
38 Nev. 338, 341 (1915) Turner Lumber Co. v. Tonopah Lumber Co.
the coming season and delivered when dry. Prices to be based on Truckee river price list
September 1st-06 which is at present in vogue. If this is satisfactory to you, write us a letter to
this effect and we will consider the matter closed until such time as you start cutting, when
we will forward to you a cutting list.
Awaiting your reply, we are,
Yours truly, Tonopah Lumber Co.,
By A. J. Crocker.
R.
Sattley, Sierra Co., Cal., 1-7-07.
Tonopah Lumber Co., Tonopah, Nev.Gentlemen: Replying to your favor of the 27th
ult. addressed to the Sunset Lumber Co., beg to say that the writer and those associated with
him will be pleased to furnish you the 1,000,000 feet or more of No. 1 common pine and fir
to be cut this season and shipped when dry. The prices to be based on the Truckee river price
list of Sept. 1st, 1906. We expect to cut 3,000,000 feet including all grades, and would be
pleased to furnish you some uppers, such as finish, rustic, ceiling, flooring, ship-lap,
moldings, etc. based on the same list as above. Should you desire to have any of this, please
let us know as soon as convenient. We expect to do business under a new name, and will
notify you of the same as soon as our articles of incorporation are filed.
Awaiting your reply, we remain,
Yours respectfully,
Sunset Lumber Co.,
By Jas. M. Turner.
Tonopah, Nev., January 12th, 1907.
Sunset Lumber Co., Sattley, Cal.Gentlemen: We are in receipt of your letter of Jan.
7th, and note that you will accept our cutting order for 1,000,000 feet of No. 1 common pine
and fir; price to be based on Truckee river price list of Sept. 1st, 1906. In regard to the other
grades of lumber, we will say that if your grade of finish is up to the standard of the mills in
that section, we will undoubtedly be able to take some of it, and possibly, also some ship-lap.
38 Nev. 338, 342 (1915) Turner Lumber Co. v. Tonopah Lumber Co.
also some ship-lap. We will not be able to use any rustic, ceiling or flooring unless something
unforeseen happens, as we handle this material only in the Oregon pine. We would be pleased
to receive a list from you as to how much lumber you still have on hand for us awaiting
shipment.
Yours very truly,
Tonopah Lumber Co.,
By A. J. C.
2.
Sattley, Cal., 4-23-07.
Tonopah Lumber Co., Tonopah, Nev.Gentlemen: Please send us as soon as convenient
a cutting order of the lumber you desire on the contract between us. We have made
arrangements with the Washoe County Bank for money on the strength of this order, and
therefore ask that you make all future remittances direct to the bank. We also suggest that you
write that bank to the effect that we have notified you to make all remittances on this order
direct to them.
Thanking you, we remain,
Yours respectfully,
Turner Lumber Co.,
By F. H. Turner.
Tonopah, Nev., April 24th, 1907.
Turner Lumber Co., Sattley, Calif.Gentlemen: Kindly let us know at once if you will
be in a position to furnish us with one million feet, a cutting for which will be sent you later
on. Also the prices on same f. o. b. cars.
Tonopah Lumber Co., by A. Revert.
Sattley, Cal. Apr. 27, 07.
Tonopah Lumber Co., Tonopah, Nev.Gentlemen: Replying to your favor of the 24th,
will say that we wrote you on the 23d inst., regarding a copy of cutting order of your
requirements. On Jan. 7, Jas. M. Turner, of the Sunset Lumber Co., wrote you, stating that we
would be in a position to furnish you a million feet of lumber, but would do business under
another company name, but we overlooked the fact that we were to inform you of the new
name of our company.
38 Nev. 338, 343 (1915) Turner Lumber Co. v. Tonopah Lumber Co.
you of the new name of our company. In the letter of Jan. 7, Mr. Turner stated that we would
accept your order for a million feet, based on Truckee river price list of Sept. 1st, 1906, as per
your letter of the 27th of Dec. 06. We are now doing business under the above name, having
incorporated and succeeded the Sunset Lumber Co., and lumber firm of the writer.
Trusting that the above fully explains matters, we are,
Yours respectfully,
Turner Lumber Co.,
By F. H. Turner.
Sattley, Cal., May 2, 1907.
Tonopah Lumber Co., Tonopah, Nev.Gentlemen: We are in receipt of your favor of the
29th ult., containing cutting order for 700,000 feet lumber. We note that you will send
additional orders soon for 300,000 feet. We also note that the order calls for a large
percentage of small stuff, and we would ask if you can make the additional orders for large
stuff, such as 6x6, 6x8, and 8x8?
Thanking you, we are,
Yours respectfully,
Turner Lumber Co.,
By F. H. Turner.
Plaintiff's Exhibit 9 is an instrument purporting to be what is termed a cutting order, sent
to respondent company by appellant company pursuant to the correspondence that had
previously passed between them, and is for 700,000 feet of lumber.
Pursuant to the agreement between the parties, entered into by these letters, respondent
was to receive $18 per thousand for the lumber, delivered at Boca, a point on the main line of
the Southern Pacific Railroad. It appears that, of the 1,000,000 feet of lumber mentioned in
the letters, only 700,000 feet was ever put in the form of a cutting order by appellant; and, of
the 700,000 feet described in the cutting order, only 319,087 feet was received by appellant.
The trial court established as the basis of the measure of damages the difference between
the contract price of the lumber, $1S, and its value in the market at the time the suit was
brought, fixing the same at $14.50 per thousand.
38 Nev. 338, 344 (1915) Turner Lumber Co. v. Tonopah Lumber Co.
of damages the difference between the contract price of the lumber, $18, and its value in the
market at the time the suit was brought, fixing the same at $14.50 per thousand. For the
lumber disposed of to third parties by respondent, the court allowed damages for the
difference between the price received and the contract price, taking into consideration the cost
of production and transportation. Judgment was entered for respondent in a sum equal to the
difference between the market price at the time of the bringing of the suit and the contract
price, for the lumber yet remaining in the hands of respondent, basing the damages on
380,913 feet. Pursuant to the finding of the court in this respect, judgment was entered in
favor of respondent for the sum of $2,148.20.
Mack & Green, for Appellant:
Respondent being in default, appellant had the right to rescind the contract, and to refuse
to accept or pay for further deliveries under it. (24 Am. & Eng. Ency. Law, 1110; Norington
v. Wright, 115 U. S. 188, 5 Fed. 768; In Re Kelly, 51 Fed. 194; Pope v. Porter, 7 N. E. 304;
National Surety Bank v. Long, 125 Fed. 887; Ross Mehan F. Co. v. Royer W. Co., 83 S. W.
167.)
If appellant was guilty of any breach of the contract, the measure of damages should be the
difference between the contract price and the market value of the lumber at the place of
delivery at the time of the breach. (Bigelow v. Legg, 6 N. E. 107; Whitmore v. Coats, 14 Mo.
9; Rand v. White M. R. R., 40 N. H. 79; Rider v. Kelly, 32 Vt. 268; Gunson v. Madigan, 13
Wis. 67; Ballantine v. Robinson, 64 Pa. St. 177; Barry v. Cavanaugh, 127 Mass. 394;
Fireworks Co. v. Polites, 18 Atl. 1058; Brownlee v. Bolton, 6 N. W. 657; Sutherland on
Damages, 3d ed. vol. 1, sec. 51; Page on Contracts, vol. 3, sec. 1590; Sedgwick on Damages,
9th ed. vol. 2, sec. 753; Elliott on Contracts, vol. 5, sec. 5095; Am. & Eng. Ency. Law, vol.
24, p. 1114; Watt v. Nev. C. R. R., 23 Nev. 154; Newman v. Kane, 9 Nev. 234.) Summerfield
& Curler and Summerfield & Richards, for Respondent:
38 Nev. 338, 345 (1915) Turner Lumber Co. v. Tonopah Lumber Co.
Summerfield & Curler and Summerfield & Richards, for Respondent:
Delay or nondelivery having been caused by appellant, breach of the contract was on its
part. (Am. & Eng. Ency. Law, 2d ed. vol. 24, pp. 1073, 1074, 1087, 1110, 1111.) Appellant
could not rescind as to part of the contract and affirm as to the remainder. (Norington v.
Wright, 115 U. S. 188.) The right to rescind must be promptly exercised. (Am. & Eng. Ency.
Law, 2d ed. vol. 24, pp. 111, 112.)
The price received for the lumber at the place of delivery, and the immediate vicinity
thereof, where the evidence shows reasonable diligence on the part of the vendor, in the
absence of evidence of bad faith on his part, establishes the market value of the lumber at the
place and its vicinity. (Hughes v. German Fruit Co., 106 Cal. 445; Morris v. Wilbaugh, 159
Ill. 627; Hill v. Hobart, 16 Me. 168; Atwood v. Lucas, 89 Am. Dec. 713; Wrigley v.
Cornelius, 162 Ill. 92; Sutherland on Damages, 3d ed. vol. 3, p. 1859.) The measure of
damages is the difference between the contract price and the market value of the
manufactured lumber at the place of delivery on the date of the repudiation of the contract.
(Waples v. Overacker, 77 Tex. 7, 19 Am. St. Rep. 727.)
Technical and restricted construction of pleadings is unwarranted in law. (Lawrence v.
Milwaukee Co., 54 N. W. 797; Hinckley v. Pittsburg B. S. Co., 121 U. S. 264; Hale v. Trout,
35 Cal. 229; Kimball v. Deers, 108 Iowa, 676; Tahoe Ice Co. v. Union Ice Co., 109 Cal. 242;
Sutherland on Damages, 3d ed. vol. 3, p. 1869.)
By the Court, McCarran, J. (after stating the facts):
[1] There can be no serious attempt to deny the existence of a contract between the parties
to this action. The terms of the contract may be found in the several letters set forth in the
statement of facts, and especially in the letter from appellant to respondent dated December 6,
and from respondent to appellant December 24, and from appellant to respondent December
27, and from respondent to appellant January 7, 1907. This contractual relation established
by these respective communications was manifested by the letter of April 24 from
appellant to respondent, in reply to which respondent referred to former communications
between the parties, and especially to respondent's letter of January 7, 1907, wherein
they accepted appellant's order for 1,000,000 feet of lumber as per appellant's letter of
the 27th of December, 1906.
38 Nev. 338, 346 (1915) Turner Lumber Co. v. Tonopah Lumber Co.
contractual relation established by these respective communications was manifested by the
letter of April 24 from appellant to respondent, in reply to which respondent referred to
former communications between the parties, and especially to respondent's letter of January
7, 1907, wherein they accepted appellant's order for 1,000,000 feet of lumber as per
appellant's letter of the 27th of December, 1906. This contractual relation was established at
the instance and invitation of appellant, as is evidenced by their letter of December 6, 1906.
The terms of the contract essential to the principal issue in this case are set forth in
appellant's letter of December 27, 1906; and this letter, together with respondent's letter in
reply thereto, to wit, of date January 7, 1907,