Nevada Reports 1914-1915 (38 Nev.) PDF

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to construct and equip, a high-school building in the town of Wells, was not repealed or amended by the act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.
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,
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.
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.
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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.
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:
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.
issuance of a writ of prohibition, it follows that the writ should be denied.
It is so ordered.
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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.
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.
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.
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.
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.
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."
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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?
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.
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.
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.
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.)
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.
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.
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.)
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.
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.
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.
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.
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;
(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.
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."
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."
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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."
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.
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.
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.
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."
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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."
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.
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."
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.
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.)
[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.
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.
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.
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?
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.
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."
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.
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.
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.
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.
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.
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.
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:
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.
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
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.
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.
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.
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:
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.
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.
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.
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.
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.
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.
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.
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.
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.
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."
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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
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.
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.
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.
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."
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.
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:
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.
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.
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.,
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.
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.
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.
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.
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.
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.
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.
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.
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.
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."
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
$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.
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.
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.
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.,
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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."
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.
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.
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.
John Clancy was convicted of robbery, and he appeals. Affirmed.
Fred B. Hart, for Appellant.
Geo. B. Thatcher, Attorney-General, for Respondent.
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.
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.
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.
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
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.
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.
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.
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.
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.
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."
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.
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.
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."
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.
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.
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.
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.
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
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.
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."
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.
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."
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.
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.
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.
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.
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.
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.
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."
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.
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.)
[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.
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.
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.
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.
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.)
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.
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."
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.)
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.
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.
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.
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.
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.
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.
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.
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.)
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
[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.
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.
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.
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.
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.
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.)
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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"?
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.
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.
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.)
38 Nev. 304, 305 (1915) State v. Clark
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.
[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.
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.
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.
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
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.)
[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.
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.
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."
* * * 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.
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.
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.
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.
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.
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.)
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
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.
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:
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.)
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."
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?
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.
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.
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. * * *
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."
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."
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.
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.
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.
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.
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.
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.
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.
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.
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.
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:
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.
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, in our judgment evidenced a meeting of the
minds of the parties as to three essential things in this case; that is, the amount of lumber, the
season in which the lumber was to be cut by respondent, and the time of deliverythe latter
limited only by a specific condition, to wit, when dry. In this respect, it may be well to note
that respondent's letter of January 7, 1907, in reply to appellant's letter of December 27, 1906,
specifically mentions these terms in detail. The letters referred to are as follows:
Tonopah, Nev., December 27-06.
Messrs. Sunset Lumber Co., Sattley, Cal.Gentlemen: We are in receipt of 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. 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.
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 you reply, we remain,
Yours respectfully,
Sunset Lumber Co.,
By Jas. M. Turner.
Appellant's letter of January 12 amounts merely to a confirmation of the terms agreed upon
in the two former communications.
The cutting order sent by appellant to respondent April 29, 1907, pursuant to the contract,
for 700,000 feet of lumber, says nothing as to sizing or surfacing.
On June 10, 1907, respondent wrote to appellant as follows:
Tonopah Lumber Co., Tonopah, Nev.Gentlemen: Referring again to you letter of the
29th of April, we would ask if you want the lumber surfaced.
would ask if you want the lumber surfaced. And if so, please give us a memo of the thickness
and widths wanted. We would also like to receive your cutting order for the 300,000 feet, as
per you letter of May 6th, as we will soon be ready to commence cutting on it.
Yours respectfully,
Turner Lumber Co.,
By F. H. Turner.
Another letter from respondent to appellant, dated July 24, 1907, on the same subject, is as
follows:
Tonopah Lumber Co., Tonopah, NevadaGentlemen:
On the 18th utl., we wrote you asking if you would want some of the lumber in the cutting
order you gave us surfaced, and if so, please let us know what thicknesses it should be. As
yet, we have not received a reply. Kindly let us know as soon as convenient. Would also like
to receive your cutting order for the balance of 300,000 feet on the contract, per your letter of
May 6th. We can commence shipping soon after the first of next month.
Yours respectfully,
Turner Lumber Co.,
By F. H. Turner.
Respondent's letter of September 20 pertains to the same subject, namely, the sizing of the
lumber, and urges appellant to give them information on that subject. It is as follows:
Sattley, Cal., Sept. 20, 1907.
Tonopah Lumber Co., Tonopah, Nev.Gentlemen: We have written you twice asking
you if any of the lumber on the order you gave us is to be surfaced or sized. As yet we have
received no reply. We have quite a lot of the order on hand and as the season is getting late
we are anxious to commence moving the lumber as we have to haul it with teams to the
railroad. If you will kindly advise us as to the lumber you want surfaced or sizedif
anyand give the thicknesses and widths desired we can commence running it out and
hauling it to the R.R. and have it ready to ship when occasion requires.
can commence running it out and hauling it to the R.R. and have it ready to ship when
occasion requires.
Hoping to hear from you soon, we remain,
Yours respectfully,
Turner Lumber Co.,
By F. H. Turner.
As appears from the record, the first shipping order was sent to respondent by appellant on
the 29th day of September, 1907; and nowhere does it appear that appellant gave any
instructions to respondent as to surfacing and sizing the lumber contained in the cutting order
of 700,000 feet, except in so far as the respective shipping orders, sent in on September 29,
1907, and subsequent thereto, designated the surfacing and sizing of each particular order.
With respect to this phase of the contract, the letter of appellant to respondent of date
November 23, 1907, is significant. It is as follows:
Tonopah, Nev. November 23d, 1907.
Turner Bros., Sattley, CaliforniaGentlemen: There will be no necessity for surfacing
any of the material mentioned in our previous letter. We cannot give you any assurance as to
when this material will be ordered shipped, but will do out best to clear it up in as short a
time a possible.
Yours truly,
Tonopah Lumber Company,
Per A. Revert.
AR-MF. M. F.
As appears from the record, and from the undisputed testimony of respondent, the entire
700,000 feet of lumber, as contained in the cutting order of April 29, 1907, was milled by
respondent. Some of the lumber was hauled to the railroad at Loyalton, and some held in the
mill yards. It appears from the record that several shipping orders were sent to respondent by
appellant subsequent to September 29; and it also appears from the record that respondent
was in a position to fill these orders, having previously cut the lumber as per appellant's
cutting order of April 29. Some delays appear on the part of respondent, which they contend
were due to their having to size and surface the lumber after receiving the order, and on
other occasions were due to the lack of cars.
of respondent, which they contend were due to their having to size and surface the lumber
after receiving the order, and on other occasions were due to the lack of cars.
It is the contention of appellant that respondent was unable, or at least failed, to comply
with the terms of the contract, by failing to ship the lumber within the season of 1907; but in
this respect the letter from appellant to respondent of October 26 is significant:
Tonopah, Nev., October 26, 1907.
Turner Bros. Lumber Company, Sattley, CaliforniaGentlemen: Owing to depressed
conditions here, will ask that you cancel order 1120, for a car of 2x12. Also cancel all orders
that you may have for us for the present. Just as soon as conditions improve in this locality,
we shall notify you to ship our orders. Kindly acknowledge receipt of this letter.
Very truly,
Per A. Revert.
M. F.
This cancellation of previous orders was recalled on October 27 by the letter of appellant
to respondent, as follows:
October 27, 1907.
Turner Bros. Lumber Company, Sattley, CaliforniaGentlemen: Last Evening we wrote
you to cancel order 1120 for a car of 2x12 and also all other orders that you may have for us.
We wish to recall this cancellation and ask that you let shipments come forward sending the
1x12 & 2x4 first. We are badly in need of the 1x12. Kindly give this matter your prompt
attention, and oblige.
Very truly,
AR-MF. Per.
Following this, the record discloses a telegram, as follows:
Tonopah, Nev. Turner Bros. Sattley. Cancel all orders except on by twelve Tonopah
Lumber Co.
This wire is acknowledged by respondents by their letter of October 30, 1907, as follows:
10-30-07. Tonopah Lumber Co., Tonopah, Nev.Gentlemen: Your wire of today at
hand. Two cars were shipped to you yesterday but we will hold further shipment until advised
by you. Yours respectfully.
So far as the record discloses, the shipping orders canceled by appellant's wire of October
30. 1907, were never revived, and, so far as we may determine from the record, were held by
respondent pursuant to their letter of October 30, wherein they stated they would hold further
shipments unitl advised by appellant.
It is the contention of appellant that respondent was guilty of a breach of the contract,
inasmuch as the record discloses that on the last day of the year 1907 respondent was in
arrears, or, in other words, had failed to deliver 311,843 feet of lumber.
[2] There are many elements in this case that might be considered as decisive of the
controversy, and there are many phases of the law that might apply; but we deem it sufficient
to say that, so far as the facts presented by the record disclose, the court had good and
substantial evidence to warrant its finding that the defendant company, appellant herein, due
to its delay in furnishing respondent with specifications as to surfacing and sizing, and due to
its acts in canceling orders previously given, and never reviving the orders, was responsible
for the delay in delivery.
There is some evidence in the record which goes to show that on some occasions
respondent was unable to make prompt delivery of specific orders, due to climatic conditions
and scarcity of transportation facilities on the railroad. But nowhere does the record disclose
any complaint as to these minor details, coming from appellant.
Moreover, the record fails to disclose any notice of rescission or cancelation of the
contract given by appellant to respondent; nor does the record disclose any acts on the part of
appellant from which or by reason of which respondent could reasonably have inferred that
appellant considered the contract as rescinded, or that appellant intended rescission of
the contract.
which respondent could reasonably have inferred that appellant considered the contract as
rescinded, or that appellant intended rescission of the contract.
On March 1, 1908, respondent addressed a letter to appellant, part of which is as follows:
We have on hand in Loyalton, ready for immediate shipment, the following lumber: * * *
We would be very much pleased to ship this in the near future, as this is stock cut for you;
would ask you to strain a point and take it.
To this letter, appellant replied:
We are in receipt of your letter of March 1st, and beg to advise that we cannot at this time
use any of the material contained in your letter of that date.
On May 25, 1908, respondent communicated with appellant, as follows:
After looking over all our communications with you, we do not see any reason why you
should not take the balance of the lumber you ordered from us on April 29th, 1907,your
order No. 1028. We therefore insist that you take this lumber as you agreed. The lumber was
to have been shipped when dry, and we have held it ever since last fall, and now that the
market has declined, we do not feel that this should be our loss. We would like to know just
what you are going to do about this matter.
To the foregoing communication, appellant replied:
We are in receipt of your letter of May 25th, and are surprised at the tenor of the same. If
you will refer to our letters and orders, you will find that you were simply unable to take care
of the orders that we would offer you, and for that reason we will ignore your letter entirely.
You may take any action you may deem fit regarding our attitude and desire to say that under
no circumstances will we take a foot of your lumber, as bluffing with us don't go.
Futhermore, we intend to insist upon the payment of amount due Verdi Lumber Company.
You have our sentiments in the matter, and now, gentlemen, proceed.
This letter might properly be termed a repudiation of the contract by appellant, and in
our judgment the court was warranted in finding that the breach of the contract took
place on the date of this letter, to wit, May 27, 190S.
the contract by appellant, and in our judgment the court was warranted in finding that the
breach of the contract took place on the date of this letter, to wit, May 27, 1908.
In this case, respondent had not only the means whereby to comply with the terms of the
contract as made, but the record discloses that they did, in fact, mill and manufacture all of
the lumber for which a cutting order was given them by appellant.
[3] The contract required the lumber to be shipped when dry, and there is nothing in the
record from which we could infer failure on the part of the respondent to perform under this
condition. This was a definit time, contingent upon the accomplishment of a certain condition
of the product to be furnished; and, so far as the terms of the contract were concerned,
respondent might justifiably have shipped the lumber to appellant without further order, when
the lumber was dry.
The record discloses a letter in which respondent notified appellant that much of the
lumber milled pursuant to the cutting order was dry and ready for shipment.
It was by appellant's request that, owing to unsettled conditions, the lumber should not
be shipped until further notice from them. This was a change in the conditions of the original
contract, for which change appellant was responsible, and which change was made to suit the
convenience and welfare of appellant. Moreover, appellant, in order to suit its convenience,
delayed its orders for sizing and surfacing, and thereby caused new conditions to enter into
the performance of the contract which were not contemplated in tis original making; and
these conditions, as we have already said, were brought about at the instance and request, and
to suit the convenience, of appellant.
If the entire 700,000 feet of milled lumber was not shipped within the year 1907, it was
because respondent sought to meet the convenience of appellant, at appellant's suggestion and
request, by shipping the lumber in quantities and at times as and when appellant ordered, thus
delaying the delivery of the lumber.
As we have already stated, so far as the terms of the contract prescribe, the respondent had
a right to deliver the entire 700,000 feet of lumber, included within the cutting order, when
the same was dry; and the record discloses that the lumber had been milled and was ready for
shipment in the condition contemplated by the contract, to wit, dry, before the close of the
year 1907.
It was due to respondent's act in acceding to a change from the original terms of the
contract, which change was required by and for the convenience of appellant, that the lumber
was not shipped within the year 1907.
We deem it unnecessary to cite the many authorities available to bear out our reasoning
and conclusion in this case. Suffice it to say that in our judgment the reasoning set forth by
Mr. Justice Miller, speaking for the Supreme Court of the United States, in the case of
Amoskeag Mfg. Co. v. United States, where the conditions and questions were almost
identical with those at bar, is applicable to this case and conclusive of the principal question
of law raised. (Amoskeag Mfg. Co. v. United States, 17 Wall. 592, 21 L. Ed. 715.) To the
same effect are the cases of Boone v. Templeman, 158 Cal. 290, 110 Pac. 947, 139 Am. St.
Rep. 126, and Bennie v. Becker-Franz Co., 14 Ariz. 580, 134 Pac. 280.
It is contended that the court erred in fixing the damages, for the reason that in computing
the same the court did so on a basis of the market price at the time of the trial.
[4] If the computation of damages on this basis was error, we are convinced from the
record that it was such an error as rather inured to the benefit of appellant, and therefore they
cannot complain.
It follows that the judgment of the lower court, made pursuant to its findings of fact,
should be affirmed.
It is so ordered.
On Rehearing
In the former decision by this court we held that in this case there was on the 27th day of
May, 1908, a repudiation by respondent of a contract between the parties.
repudiation by respondent of a contract between the parties. A rehearing was granted in the
case to give further consideration to the contention of appellant that the trial court had applied
an erroneous rule in assessing the damages.
One finding of the trial court is to the effect that:
At the time of the bringing of this action, and at the time of the trial thereof, * * * said
lumber could not be disposed of in the market for more that $14.50 per thousand feet.
This suit was commenced on July 10, 1908. The trial of the action was during the month
of March, 1909. The repudiation of the contract by respondent took place on May 27, 1908.
Whatever the finding of the court may be, it is apparent from the record that the court had
the correct rule in view during the trial and tried the case in the light of such rule. After a
question by respondent's counsel as to what price respondent received for lumber which was
included in the cutting order, the court, in ruling upon an objection, made the following
observation:
If it is sold for less than the market price, of course that is a matter of proof also. If a
contract is repudiated for the sale of personal property, it would be the duty of the plaintiff to
prevent a further accumulation of damages by disposing of the property if he could do so.
And I think the value of the property at that time is proper testimony for the purpose of
showing the difference between the contract price and the price that he could obtain for it. Of
course, the question as to whether he sold that property, or that lumber, for less than the
market value at that time, can be shown by the defense in this case. But I think it is one of the
elements to show what the party did with the propertywith the lumber.
Professor Williston, in his work on Sales (p. 966, et seq.), after discussing the subject at
length, says:
The matter may, therefore, be summarized that the measure of damage is the difference
between the contract price and the market price of the goods at the time and the place when
the contract should have been performed.
time and the place when the contract should have been performed. * * * Though the market
value at the time and place where delivery should have been accepted under the contract is
the exact matter to be determined, that value sometimes cannot be determined directly.
The contract in the case at bar called for the delivery by respondent to appellant of 700,000
feet of lumber at Boca, a point on the main line of the railroad, and one of the places where
the Truckee River schedule of prices prevailed.
This case presents what might be termed unique conditions. The mill of the respondent
company was situated at Sattley, a small hamlet in Sierra Valley far remote from any market
center. In order to reach the main line with the lumber manufactured at this mill it was
necessary to convey the same by teams to the nearest railroad and there ship on a branch line
to Boca, designated as the place of delivery in the contract involved herein.
The contract was entered into between appellant and respondent during a time at which
unusual conditions prevailed in the mining centers of Nevada. Toward the latter part of 1907,
as the record discloses, a general business depression set in at these localities. This depression
materially affected the lumber market; hence we find from the record a general slump, so to
speak, in the lumber market in this locality during the latter part of 1907 and during all of the
year 1908. After the refusal on the part of appellant to accept the lumber under its contract
with respondent, the latter found itself with a large quantity of lumber on hand, milled
pursuant to the cutting order of appellant, far remote from a market center, confronted with
these conditions of business depression.
That this general depression in the lumber market prevailed is manifest from the testimony
of the witness C. T. Bliss, manager of the Hobart Mills, called to testify in behalf of appellant.
He states, in substance, that lumber of a character involved in the contract was selling,
delivered at Truckee River points, during the year 1907, at from $1S to $20 per thousand.
1907, at from $18 to $20 per thousand. He states that the mills with which he was connected
acted independently in the fixing of its price for lumber; that there was no concert of action
by the various mills tributary to Truckee River shipping points in fixing the price of lumber,
although mills followed the price fixed by his company, in general. From his testimony it is
disclosed that during the early part of the year 1908 the price fixed by his company for lumber
of the character involved in the contract was reduced from $18 to $16 per thousand. There is
nothing in the testimony of this witness from which it might be determined that No. 1
common lumber in quantity could be sold in the market during the year 1908 for as high a
price as $16 per thousand. It is significantly established by the testimony of this witness that
the price fixed by his company was for lumber ordered, and that the demand for lumber
during the year 1908 had greatly decreased owing to prevailing conditions.
From the testimony of the witness F. H. Turner and the witness J. M. Turner, the
principals in the respondent corporation, it is disclosed that the market price for lumber of the
character contemplated by the contract on the 27th day of May, 1908, the date of the
repudiation of the contract, as well as at or about the time of the commencement of the suit
herein, at Truckee River points, or at least at Boca, the place of delivery, was $12 per
thousand. Moreover, it is disclosed from the testimony of the witness F. H. Turner, in
substance, that his company peddled around in wagons about a hundred thousand feet of
the lumber included in the cutting order, at the price of $12 and $12.50 per thousand.
To the interrogatory, What efforts, Mr. Turner, did you make to sell that lumber? the
witness replied: Tried the companies here and at Reno, offering it for $14.50 to $14. They
told me no, that they could do better over the N.-C.-O.
It is disclosed, however, from the evidence of the witness Turner, that his company
disposed of one car containing about 25,000 feet at Boca for $16 per thousand, and shortly
thereafter three carloads were disposed of at Boca for $14 per thousand.
containing about 25,000 feet at Boca for $16 per thousand, and shortly thereafter three
carloads were disposed of at Boca for $14 per thousand.
It is apparent that the testimony affecting the question of the market price of lumber
appears to have been directed generally, and by the trial court limited, to the time of the
breach and the period immediately thereafter.
We are unable to determine as to the exact method of calculation by which the trial court
arrived at the conclusion that the market price for the lumber at the time of the repudiation of
the contract, or at any time after the 27th day of May, 1908, was $14.50 per thousand. Suffice
it to say, in this respect, that the price arrived at by the trial court was much more favorable to
appellant than what appears to be established by the evidence in the case; and this being true,
the appellant herein cannot be heard to complain.
The trial court, notwithstanding the finding entered herein, manifestly adhered to the
correct rule in assessing the damages, and thereby determined that $14.50 per thousand was
the market price of the lumber in question at Boca, the place designated in the contract as that
of delivery, on the date of the breach of the contract or shortly thereafter. The trial court
appears to have applied this rule and this price to the lumber in the hands of respondent
company at the time of the commencement of the action. It appears, however, that the actual
selling price was taken as the market price by the trial court as to lumber disposed of by the
respondent company prior to the commencement of the action. In this respect, however, it is
our judgment that the rule followed by the trial court, being the correct rule, should have been
applied to all of the lumber refused by the appellant company and milled by respondent
pursuant to the cutting order. In other words, the market price of $14.50 per thousand having
been established by the trial court as the market price of the lumber at the place of delivery at
or about the date of the repudiation of the contract, the damages accruing to respondent
should have been assessed as being the difference between the market price of $14.50
and contract price of $1S, or a loss to the respondent company of $3.50 per thousand.
have been assessed as being the difference between the market price of $14.50 and contract
price of $18, or a loss to the respondent company of $3.50 per thousand.
The amount of lumber in the hands of respondent, milled pursuant to the cutting order of
appellant and refused by the latter on the 27th day of May, 1908, was 565,913 feet. This
amount, computed on the basis of $3.50 per thousand, would properly establish the amount of
damages assessed against the appellant in favor of the respondent, i. e., $1,980.69.
It is, therefore, ordered that the judgment of the trial court entered herein be modified, and
that respondent herein, plaintiff in the court below, be awarded damages in the sum of
$1,980.69, with legal interest thereon.
As so modified, the judgment is affirmed.
____________
38 Nev. 359, 359 (1915) Coppermines Co. v. Comins
[No. 2114]
THE COPPERMINES COMPANY (A Corporation),
Respondent, v. H. A. COMINS, Appellant.
[148 Pac. 349]
1. DeedsDescriptionConstruction.
Under the rule that the particular description in a deed controls as against a general description, a
particular description, setting forth the legal subdivisions, limits and defines the grant as against a general
description denominating the estate conveyed as a designated ranch.
2. DeedsConstructionAmbiguous Deeds.
Where a deed is ambiguous, the court will generally consider the position of the parties and the
circumstances and interpret the language in the light thereof.
3. DeedsConstruction.
Where a grantor conveys land by metes and bounds, the circumstances must be very strong to prove that
he meant to convey any other lands than those described.
4. DeedsConstruction.
In the construction of deeds, explanatory clauses and descriptive terms must be given weight, and, while
they may go to the extent of passing title, yet before such effect should be given to them it should appear
from the deed beyond all reasonable doubt that it was the intent of the parties to give them such
significance.
5. DeedsConstructionProperty Conveyed.
A deed described the land conveyed as commonly called the Comins Ranch and by government
subdivisions. Fences were beyond the government subdivisions and so contructed as to clearly show that
they did not follow the lines of government subdivisions. The abstract of title was limited to the
government subdivisions, and the land between the government subdivisions and the fences was not
assessed in the name of the grantee. Held, that the land conveyed was only the land described by
government subdivisions.
Appeal from Ninth Judicial District Court, White Pine County; Ben W. Coleman, Judge.
Action by the Coppermines Company against H. A. Comins. From a judgment for
plaintiff, defendant appeals. Reversed and remanded.
Summerfield & Richards, for Appellant:
The burden of proof is upon the respondent to show its title to the land in dispute. The
primary and fundamental principle in the construction of deeds is that the intention of the
parties, as expressed in the instrument, taken as a whole and considered altogether, must
control. (Case v. Dexter, 106 N. Y. 548, 13 N. E. 449; Clement v. Bank, 4 L. R. A. 425; 17
Ency. Law, 2d ed. 4; 13 Cyc. 604, 627; Railway v. Tamplin, 40 N. E. 960; Lovejoy v. Gaskill,
14 N. W. 583; Mittel v. Karl, 24 N. E. 553.)
Of two conflicting descriptions in a deed, or two conflicting parts of the same description,
the more certain and definite and the one least likely to be mistaken or inserted inadvertently
must prevail. (Heaton v. Hodges, note, 30 Am. Dec. 735; Benedict v. Gaylord, 29 Am. Dec.
299; Clement v. Bank, supra; Melvin v. Proprietors, 38 Am. Dec. 384, 387; White v. Gay, 31
Am. Dec. 224; Wade v. Deray, 50 Cal. 376.)
A general description in a deed will be controlled and limited by a particular. (2 Devlin on
Deeds, 1466, 1467; Carter v. White, 7 S. E. 473; Cullers v. Platt, 16 S. W. 1003; Midgett v.
Twifford, 26 S. E. 626; Prentice v. Railroad, 154 U. S. 163, 38 L. Ed. 947; Crabtree v.
Miller, 80 N. E. 225; Parker v. Kane, 22 How. 1; Cummings v. Black, 25 Atl. 182; Jones v.
Smith, 39 N. W. 82.)
In case of doubt, quantity may be an important element in solving the doubt. (30 Am. Dec.
741; Field v. Columbat, 9 Fed. Cas. 12; Hostetter v. Railroad, 41 Pac. 330; Reynolds v.
Lawrence, 40 South. 576, 119 Am. St. Rep. 78; U. S. v. Cameron, 21 Pac. 177; Wolfe v.
Dyer, 8 S. W. 550; Tewksbury v. French, 44 Mich. 100.)
Courts will give weight to the acts of the parties only in cases where their practical
construction of an ambiguous instrument is consistent with the language of the instrument.
(Russell v. Young, 36 C. C. A. 71, 94 Fed. 45; Kennedy v. Lee. 147 Cal. 596, 82 Pac. 257;
Stone v. Clark, 35 Am. Dec. 370.) Such interpretation is not admissible to defeat language
which is definite and certain, nor when it would be in violation of settled rules of
construction. (Oakland Co. v. Union G. & E. Co., 62 Atl. 915, 921; Coop. Bldg. Co. v.
Hawkins, 73 Atl. 617, 621.) Where the legal intent of a deed is certain, there is no room for
construction by acts of the parties. (New Point Lodge v. School Town, 37 N. E. 650; Weill v.
Lucerne M. Co., 11 Nev. 200.)
Construing the deed by acts of the parties cannot avail respondent short of the running of the
statute of limitations. (Hastings v. Stark, 36 Cal. 122; Adams v. Child, 28 Nev. 169, 88 Pac.
1087; Small v. Robbins, 110 Pac. 1128.)
It is not sufficient that there be some evidence to support a verdict; the judgment and decree
of the lower court may be reversed unless there is a substantial conflict in the evidence. (State
v. V. & T. R. R. Co., 23 Nev. 292; Rehling v. Brainard, 144 Pac. 170; Robinson M. Co. v.
Riepe, 138 Pac. 912; Watt v. Nevada Cent. R. R. Co., 23 Nev. 154; Ophir M. Co. v.
Carpenter, 4 Nev. 354; Dalton v. Dalton, 14 Nev. 419; Pinschower v. Hanks, 18 Nev. 99.)
Brown & Belford, for Respondent:
Conveyances are presumed to be made with reference to the state of the premises
themselves at the time; with reference to the condition of the property and its occupation at
the time. (Sengfelder v. Hill, 58 Pac. 251; Wade v. Deray, 50 Cal. 380, 382; Proctor v.
Maine, 52 Atl. 936; Damm v. Connley, 59 Pac. 756.)
The meaning of a deed is most easily ascertained by adopting that construction of it which
the parties themselves adopted. (13 Cyc. 608, 609; Mulford v. La Franc, 26 Cal. 88; Pico v.
Coleman, 47 Cal. 67; Truett v. Adams, 5 Pac. 99; Mitau v. Roddan, 84 Pac. 145; Hill v.
McKay, 94 Cal. 20, 29 Pac. 410; Grant v. Bannister, 118 Pac. 253, 255; Paroni v. Ellison, 14
Nev. 60; Vawter v. Newman, 65 Pac. 135; Shepherd v. Shibbles, 61 Atl. 700; Shartenberge v.
Elby, 62 Atl. 979; Smith v. Smith, 40 N. W. 23; Hart v. Saunders, 105 N. W. 709; Howaygo
Co. v. Chicago Co., 30 N. W. 913; Abercrombie v. Simmons, 81 Pac. 209; Edwards v.
Brusha, 90 Pac. 728.)
Description by subdivisions is not controlling unless such a rule is established, and
necessary to effect the intent of the parties. (Town v. Greer, 102 Pac. 239; Mayberry v. Buck,
81 Pac. 191; Hornet v. Dumbeck, 78 N. E. 692; Armstrong v. Bromfield, 4 Pac. 187;
Rosenberger v. Wabash Ry. Co., 70 S. W. 395; Kemple v. Hilmore, 72 Pac. 1100; Cornet v.
Greech, 100 S. W. 1188.)
A subsequent particular description in a deed is not controlling as against a prior general
description. (Barksdale v. Barksdale, 45 South. 615; Summer v. Hill, 47 South. 566; Tuthill
v. Katz, 128 N. W. 759; Wittaker v. Wittaker, 74 S. W. 759; Jones v. Maltby, 13 S. W. 432;
Shepherd v. Shibbles, 61 Atl. 702; McCombs v. Stephenson, 44 South. 867.)
Any inconsistency in a deed must be resolved most strongly in favor of the grantee. (Scott
v. Michaels, 28 N. E. 547; Merriman v. Blilack, 128 S. W. 552.) In ascertaining what the
parties meant by a deed, the balance of probabilities shall control. (Weed v. Woods, 53 Atl.
1025.)
Where there is a material conflict in the testimony, the decision of the trial court will be
deemed conclusive on appeal. (Rawhide Co. v. Rawhide Coalition Co., 33 Nev. 307; State v.
Yellow Jacket S. M. Co., 5 Nev. 415; Carlyon v. Lannan, 4 Nev. 156; Lewis v. Wilcox, 6 Nev.
215; Blackie v. Cooney, 8 Nev. 49; McCoy v. Bateman, 8 Nev. 127; Menzies v. Kennedy, 9
Nev. 159, 10 Nev. 87; Barnes v. Sabron, 10 Nev. 217, 235; Boskowitz v. Davis, 12 Nev.
46S; Solen v. V. & T. R. R. Co., 13 Nev. 136
v. Sabron, 10 Nev. 217, 235; Boskowitz v. Davis, 12 Nev. 468; Solen v. V. & T. R. R. Co., 13
Nev. 136; Hixon v. Pixley, 15 Nev. 479; Schwartz v. Stock, 26 Nev. 154; Crane v. Wilson, 22
Nev. 385; Ford v. Campebell, 29 Nev. 578; Murphy v. S. P. Co., 31 Nev. 120; Turley v.
Thomas, 31 Nev. 181.)
This is an action commenced by respondent in the district court of White Pine County to
quiet title to certain lots of land, the total acreage of which amounts to 64.167 acres.
It appears that in March, 1906, one Corbett entered into negotiations with the appellant
Comins and his wife for the purchase of certain lands owned by appellant, and the water
rights belonging to them, in what is known as Steptoe Creek, in Steptoe Valley.
On the 24th day of March, appellant and his wife made and executed a deed; the portion of
which attempting to describe the lands conveyed is as follows:
All those lots, pieces, or parcels of land situate on or near Steptoe Creek, in the county of
White Pine, State of Nevada, commonly known as and called the Comins Ranch, and more
particularly described as follows: (Here follows description of the land by legal subdivisions.)
Containing sixteen hundred (1600) acres of land, more or less; and also all water and water
rights appurtenant to the said lands, or in anywise appertaining thereto, and all the right, title,
and interest of the said parties of the first part in or to the waters of said Steptoe Creek.
Under agreement, the deed was placed in escrow, and was not delivered until the final
payment of purchase money was made, some time during the month of April, 1907.
The respondent company became the successor to Comins in the lands conveyed.
When the final payment was made, appellant vacated the houses and barns formerly
occupied by him, and delivered the same and the possession of the lands to the
representative of Corbett.
delivered the same and the possession of the lands to the representative of Corbett.
It appears from the record that at the time deed was made from Comins to Corbett, the
former was the owner of nearly four thousand acres, of which the sixteen hundred acres
embraced within the legal subdivisions enumerated in the deed constituted a part. Of the four
thousand acres owned by Comins prior to the transaction of March, 1906, only a part had
been put under cultivation by the application of waters diverted from Steptoe Creek; and it
appears from the record, and from the plats accompanying the record, that a fence had been
constructed many years prior to 1906, which, in an irregular way and running in an irregular
line, separated the wild, uncultivated land from that land which had been in whole or in part
brought under cultivation by the application of the waters from Steptoe Creek.
This fence did not follow the lines of any legal subdivisions of the land owned by Comins,
but in an irregular way crossed the southeast quarter of the northeast quarter of section 7, the
northeast quarter of the southeast quarter of section 7, the southwest quarter of the southwest
quarter of section 8, the northwest quarter of the northwest quarter of section 17, and the
southeast quarter of the northwest quarter of section 17, in which subdivisions the land in
dispute is located, and which subdivisions are contiguous to certain of the subdivisions
enumerated in the deed and conveyed to Corbett.
The accompanying plat (see page 365) illustrates the location of the ground in dispute, the
same being marked Parcel 1, Parcel 2, Parcel 3, Parcel 4, Parcel 5, and Parcel 6.
The subdivisions marked X are those named in the deed from appellant to Corbett; the
subdivisions marked C are the lands of appellant.
It is the contention of respondent that the six small tracts of land contained in the legal
subdivisions above enumerated, and inside the fence, belong to them under SEE MAP IN
BOOK the deed of purchase of March
SEE MAP IN BOOK the deed of purchase of March, 1906, although not embraced within
the legal subdivisions specifically mentioned in the description of the land set forth in the
deed from Comins and his wife to Corbett.
the deed of purchase of March, 1906, although not embraced within the legal subdivisions
specifically mentioned in the description of the land set forth in the deed from Comins and
his wife to Corbett. Their contention, briefly stated, is that everything inside the fence, which
formerly separated the uncultivated lands belonging to Comins from his cultivated lands, was
intended to be conveyed by the deed; their strongest ground of contention being that,
inasmuch as the deed in its descriptive part mentions specifically the Comins Ranch, and as
that land inclosed by the fence and separated from the uncultivated land was generally known
as the Comins Ranch, they are not confined entirely to the legal subdivisions enumerated in
the deed, but, in addition to these legal subdivisions, they became the owners of the
additional lands included within the six small parcels within the fence.
On the same day on which the deed was signed by Comins and his wife, an agreement was
entered into, in writing, as to the terms and conditions of the transaction, and also describing
by legal subdivisions the land to be conveyed. This agreement to sell will hereafter be
considered in connection with the deed.
As we view it, this case presents two distinct phases; and these phases must be considered,
in order to arrive at a just solution of the situation. The deed which passed from appellant
Comins and his wife to Corbett, the predecessor of respondent company, with its general, its
limited, and its particular descriptions as to the estate conveyed, presents the first phase. The
situation, aims, and intentions of the respective parties, culminating in the agreement to sell,
and eventually in the deed of conveyance, constitute the second phase.
[1] Established rules applicable to the construction of deeds may be resorted to in the first
of these phases. The particular description in the instrument controls, as against the general
description. Hence, that particular description which assumes to set forth the legal
subdivisions would limit and define the grant, as against the general description
demoninating the estate as the "Comins Ranch."
general description demoninating the estate as the Comins Ranch.
It is in the second phase of the case that we find the sidelights, as it were, presented in the
way of the intentions of the parties, before and at the time of the making of the agreement of
sale and the deed, as to what was desired by the purchasing party, Corbett; as to what was
intended to be conveyed by Comins; and, finally, as to what was embraced within the
agreement arrived at when the instruments were signed.
From the record it is disclosed that Charles S. Chandler, a practicing attorney of Ely,
White Pine County, represented, as attorney, the grantee Corbett in all of the transactions with
reference to the purchase of the property from the appellant Comins; and, when called as a
witness on behalf of the appellant in this case, he testified, both on direct and
cross-examination, to a number of significant facts, which, laying aside all other evidence in
the case, seem, in our judgment, to make the second phase of the case less difficult.
It was the witness Chandler who drew the deed, and who also drew the agreement entered
into between the parties. It was he who passed upon the title of the property from an abstract
furnished by appellant Comins, and in that respect the witness Chandler testifies:
Q. Did you examine the title to the property described in that agreement and deed, for the
purchaser, Mr. Corbett? A. Yes, from an abstract.
Q. What property did that abstract embrace? A. Well, it embraced the land which was
included in the deal, or at least it embraced the land which Senator Comins gave us as
included in the deal.
Q. Was the abstract an abstract of title to the land particularly described in the deedthe
forties and eighties and quarter-sections described in the deed particularly? A. Yes, sir.
Q. Did the abstract include any land outside those particularly described in that deed? A.
My recollection is that it did not.
Q. Did you make any objection to the abstract, or demand an abstract of any land other
than that particularly described in the deed? A. No.
Q. And it was upon your examination of the title that the deal was carried through and the
payments were made, was it not? A. So far as the title was concerned.
Whatever may have been the transactions or under standings between the appellant
Comins and his grantee, Corbett, prior to the 24th day of March, 1906if there were any
such understandings or agreementsthe entire matter culminated on the occasion when the
deed to the property in question and an agreement to sell were signed by the parties; and the
facts and circumstances surrounding the signing of these instruments in the office of the
witness Chandler, as testified to by Chandler, constituted what, in our judgment, may be
termed the sidelights on the second phase of the case. It appears that at that meeting the
witness Chandler, acting as attorney for Corbett, had the instruments prepared and ready for
signature, having already obtained from the appellant Comins the description, by legal
subdivisions, of the land conveyed. He testified that at that time he supposed they were
purchasing all of the land owned by Comins; and at that time, it appears, he first discovered
that Comins was the owner of other lands adjacent to those included in the deed and
agreement to sell. With reference to this, he testifies:
Q. What was the form of that contract? A. Mr. Comins gave me the description of the
land to be included in the contract and the deed.
Q. That is, the government subdivisions? A. Yes, and I believe he gave me a plat also
showing them. I drew the agreement and deed accordingly; but, in order to take care of any
lands that might have been omitted, I inserted in the agreementand possibly in the deeda
provision, after describing the particular landsomething like this: And also all other lands
situate and being on or near Steptoe Creek, belonging to the parties of the first part.'
near Steptoe Creek, belonging to the parties of the first part.'
Q. And it was that clause that Mr. Comins objected to, and that was stricken from the
contract as finally signed and in the deed finally made on March 24, 1906? A. Yes, sir.
Testifying further with reference to this, the witness said:
Q. Why, then, was the effort made on your part to get additional land, Mr. Chandler? A.
The reason we made the effort to get additional land was that at the time the transaction was
originally made I understood, and Mr. Corbett told me that he understood, that he was getting
the entire Comins Ranch, whatever it was; and it was my recollection, or is my recollection,
that the lands in controversy were part of the Comins Ranch, and we thought were entitled to
them.
Q. But they were not included in the deed and contract, you considered that they were
not, and for that reason you were trying to get them in this deal? A. Not after the contract was
drawn, we weren't making any additional effort to get land into the contract.
Mr. PutnamI mean at the time the contract was drawn. The WitnessYes, sir.
Q. You were at that time trying to get Mr. Comins to agree to let you describe other lands,
because you considered you weren't getting all the lands of the Comins Ranch; was that it? A.
There was a controversy between Mr. Corbett and Mr. Comins over that situation.
Q. And you and Mr. Corbett understood at that time that this contract and deed didn't
embrace all the lands in the Comins Ranch; that was known at that time by you and Corbett,
was it not? A. Yes, sir.
Q. And it was for that reason that you tried to get Mr. Comins to agree to let you put in
additional land, so as to cover all the land, was it not? A. I didn't know to start with that all
the lands were not in. Corbett didn't know it, and I didn't know it; but we understood that the
deal was to cover the Comins Ranch.
deal was to cover the Comins Ranch. It was owing to Mr. Comins's objection to signing the
contract that I learned of it.
The testimony of Chandler, a portion of which is quoted above, can in our judgment result
in no other conclusion than at the time of signing the agreement to sell, and the deed, to wit,
on the 24th day of March, at which time the appellant Comins and Mr. Chandler, the
representative of Corbett, were present, knowledge was brought home to Chandler of the
existence of other lands owned or controlled by Comins, which he, Comins, refused to
include in the agreement to sell or the deed. Moreover, the refusal on the part of the appellant
Comins to sign the instrument until a provision objectionable to him, which tended to include
other lands not described by legal subdivisions, was stricken from the instrument, was in our
judgment sufficient to charge Chandler, the representative of Corbett, with knowledge of the
existence of other lands under the control of Comins; and was sufficient to charge Corbett,
the grantee of appellant, and Chandler, his legal representative, with knowledge and notice
that the limit of the estate conveyed was embraced within the legal subdivisions enumerated
in the agreement to sell, and that the instruments conveyed no greater grant of land.
Respondent's contention that it was understood between the parties that all of the Comins
land inside the fence was to be conveyed in untenable, inasmuch as it required no skilled
person to see that the fence did not follow the line of legal subdivisions, but, on the other
hand, followed the irregular course. The limits of the grant being defined by legal
subdivisions, and the fence failing to follow any such subdivisions, the grantee was, in our
judgment, chargeable with knowledge, in view of the attitude of Comins at the time of the
transaction as disclosed by the testimony of Chandler, that the lines of the estate conveyed
were not defined by anything save and except the lines of the legal subdivisions enumerated.
There is another feature disclosed by the testimony of Chandler, and also by that of the
appellant Comins, which to our mind is most significant in this case.
of Chandler, and also by that of the appellant Comins, which to our mind is most significant
in this case.
The witness Chandler testifies that, on account of his interpretation of the existing statute
with reference to the appropriation of public waters, it was his desire to acquire all of the land
on which the waters of Steptoe Creek had been used in order to secure the ownership to
waters of that creek. Either prior to the 24th day of March, 1906the day on which the
instruments in question were signedor on that day, Chandler secured information that the
water from Steptoe Creek, all of which it was his desire to control, had been used on the
Comins Ranch in the irrigation of lands other than those described in the legal subdivisions
enumerated in the instruments. And in this respect it appears that one parcel of the land in
question in this case, situated in section 7, and upon which water from Steptoe Creek had
been applied, was, at the time of the making of these instruments, in the name of Henrietta
Comins, daughter of appellant herein.
In this respect, the witness Chandler testified:
Q. Do you remember, Mr. Chandler, that there were some forties here (pointing to map)
in the name of Miss Henrietta Comins, along this ditch, and that you were informed by Mr.
Comins that the water had been used on that land, and that that land was not included in the
deal? A. I don't remember where the land was, but I do recall that there was some question
about the rights of Henrietta Comins, and I believe we took a deed from her, or something.
My recollection is a little hazy about that, but I think there was a deal after the arrangement
had been made, and I think we took some deed to it.
Q. Refreshing your recollectionwasn't this the fact, that the three forties in section 7, at
the bottom of the map here (pointing on the map), were in the name of Henrietta Comins; and
that Mr. Comins told you that he had used the Steptoe Creek water in irrigating those forties;
and that you told him you desired to obtain any claim that Henrietta Comins might have to the
water of Steptoe Creek, and that, in order to obtain that, Henrietta Comins, prior to the
delivery of the deed, deeded this land and her water rights to her father, H. A. Comins, so
that the deed from him to Corbett carried her water right on that land? A. I wouldn't be
sure as tot he precise nature of that dealI would rather see the papers, which are
probably exhibits; but there was a subsequent deal, on account of my objection.
Steptoe Creek, and that, in order to obtain that, Henrietta Comins, prior to the delivery of the
deed, deeded this land and her water rights to her father, H. A. Comins, so that the deed from
him to Corbett carried her water right on that land? A. I wouldn't be sure as tot he precise
nature of that dealI would rather see the papers, which are probably exhibits; but there was
a subsequent deal, on account of my objection. I believe, the Senator having told me that
water had been used on that land, there was a subsequent deal.
Appellant Comins, in testifying as to this phase, said: My best recollection is that Mr.
Chandler asked me if the waters of Steptoe Creek had been used on any land adjacent to the
land I deeded, or contiguous or adjacentthey are comparatively synonymous terms. I said
that there was land that stood in my name and my daughter's nameand I may have said Mrs.
Comins's name. I am not positive about that.
Q. You are not positive whether you told him that there was land that stood in your name
or Mrs. Comins's name? A. Yes, I know I said there was land in my name and in my
daughter's name, and I may have said there might have been some in Mrs. Comins's name.
My recollection is that Mr. Chandler thought that any water right that H. A. Comins and his
wife owned there would pass with the deed, but any water right that Henrietta Comins, our
daughter, had would not pass with the deed, and that there should be something done to
transfer her rights to the water.
Q. Is that all the conversation? A. No, sir.
Mr. BelfordWell, go on and finish it then; I have asked you for the conversation. A. I
said: I am not only willing, but it is right to transfer any water that my daughter may have.'
The result was the deed from my daughter.
Q. Is that all the conversation? A. That was the substance of it.
Following up this transaction, as it appears in the record, we find that whatever water right
belonged to the lands of Henrietta Comins, a part of which appears to be in controversy in
this case, was conveyed to Corbett by separate instrument, but this instrument, so far as
we are able to determine, did not convey the land.
the lands of Henrietta Comins, a part of which appears to be in controversy in this case, was
conveyed to Corbett by separate instrument, but this instrument, so far as we are able to
determine, did not convey the land.
Mr. Chandler, in testifying as to this on his cross-examination when called as a witness for
the respondent company, said:
Q. As a matter of fact, however, in the case of Henrietta Comin's lands, to which you
have referred, you got a conveyance of her water right? A. My recollection is that she
conveyed to Senator Comins, and we, having his deed to us, of course covered that situation.
Q. That is to say, the water had been used on her lands, and she conveys it to Senator
Comins, and he conveyed the water to you without the land? A. I presume that is so. I must
have taken that chance on that, unless he also conveyed the land. My recollection is not clear
enough to be sure that he didn't.
Q. If the land is not included in the deed and contract, he did not convey it; did he? A. My
impression is that it wasn't included in that.
[2] In cases of this character, where the instrument of conveyance tends to present a
doubtful description, or where, by reason of the terms employed, an ambiguity is presented by
the instrument, the general rule is that the court will consider the position of the contracting
parties and the circumstances, and will interpret the language in the light of such. The
question for the court to determine, in every instance, is: What was actually embraced within
the mutual understandings of the parties?
Whatever rules a court may attempt to follow in arriving at the correct solution, one thing
is certain, that no rule or set of rules which will meet all cases has as yet ever been
formulated. Each case, taken in its entirety, presents circumstances and conditions which
must of necessity be taken into consideration in arriving at a just solution.
As to the meeting of the minds of the respective parties in this case, we refer again to the
testimony of the witness Chandler, when called as a witness for the respondent, which,
taken together with all of his other testimony, some of which we have set forth herein, is
especially significant.
the witness Chandler, when called as a witness for the respondent, which, taken together with
all of his other testimony, some of which we have set forth herein, is especially significant.
He says:
Well, of course it is very difficult at this time to say absolutely what our different talks
were. Senator Comins and I had conversations every day or so, extending over quite a long
period of time, during which we mostly disagreed and were not on the best of terms;
sometimes both of us losing our tempers.
It is admitted in this case by respondents that during all of the time since the delivery of
the deed in question the land in controversy has been omitted from the tax statements made
by the respondent to the assessor of White Pine County, and further that the same land has
been included in the tax statements made by appellant to the assessing authorities. We would
give this latter fact but little consideration if it stood alone; but, taken together with all the
other circumstances in this case, which circumstances must be considered by the court in
arriving at the solution of the problem, it takes its place as a fact worthy of consideration.
[3] The conveyance in this case was not one by metes and bounds, but was one of even
more definite description, namely, by legal subdivisions.
Whatever inference might be drawn from circumstances in this case, it will not do to say
that a man might be deprived of his property upon inference alone; and we adopt the
expression of the Supreme Court of the United States in the case of Russell et al. v. Trustees
of Transylvania University, 1 Wheat. 432, 4 L. Ed. 129, which, although decided many years
ago, has lost nothing of its significance:
Where A. conveys to B., by metes and bounds, the circumstances ought to be very strong
to prove that he meant to convey any other lands than those specifically described, before this
court would be induced to set aside one deed, and decree the execution of another.
In the instrument of conveyance in question in this case, the term Comins Ranch can in
our judgment be given no greater significance than that it was intended as a general term,
and, in a way, explanatory of the estate to be conveyed.
given no greater significance than that it was intended as a general term, and, in a way,
explanatory of the estate to be conveyed. But the estate conveyed was specifically limited by
the particular description, wherein the property was set forth by enumerating the legal
subdivisions of which it was composed. Witness Chandler testifies that when he drew the
agreement to sell and the deed he believed, and Mr. Corbett believed, that they were getting
all of the land owned by Comins; and it was not until Comins had objected to a clause,
inserted in the instrument, which tended to include other lands, that he discovered that
Comins was the owner of other lands. It is not unreasonable to suppose, in the light of this
statement by the witness Chandler, that when he first drew the instruments he used the term
Comins Ranch because he supposed that he was getting all of the land owned by Comins.
But the record discloses, and it is not a matter of dispute in this case, that Comins was the
owner of approximately 4,000 acres in Steptoe Valley, most of which was adjacent to the land
conveyed. It will not be contended for a moment that the term Comins Ranch would
include all of these holdings. And if it is true that the term Comins Ranch could not have
been intended to include all of the holdings of appellant, where the deed of conveyance
specifically limited the estate by mentioning legal subdivisions, we can see no good reason
why the general term the Comins Ranch: should embrace, or be held to contemplate, any
greater area than that embraced within the legal subdivisions set forth.
[4-5] While, in the interpretation and construction of instruments of conveyance,
explanatory clauses and descriptive terms are entitled to due weight, and while they may,
under certain circumstances and under modern rules, go to the extent of passing title, yet
before such effect should be given to explanatory clauses or descriptive terms it should
appear from the instrument, beyond all reasonable doubt, that it was the intent of the parties
using the words to give them such significance.
As was said by Mr. Justice Beatty, speaking for this court in the case of McCurdy v. The
Alpha Gold and Silver Mining Co.,
court in the case of McCurdy v. The Alpha Gold and Silver Mining Co., 3 Nev. 34:
Parties usually describe in the granting clause of a deed all that they intend to convey. And
no court should hold that a party by his deed has conveyed more than is described or referred
to in the granting clause, unless forced to that conclusion by language in other portions of the
deed which clearly and beyond all reasonable doubt shows an intent on the part of the grantor
to part with more property than was described in the granting clause.
This case must be distinguished from the case of Paroni v. Ellison, 14 Nev. 60, for, while
the description in the deed involved in the case under consideration was somewhat similar to
that involved in the Paroni-Ellison case, in that case the property was described by metes and
bounds, as well as by name; and the court said:
The testimony, which was properly admitted, clearly show that the property in dispute is
the same that was intended to be conveyed by the deed. * * * The testimony did not, in any
manner, contradict the description given in the deed.
In the case under consideration there was no description which could, by any reasonable
analysis, be intended to include all of the Comins lands, and if it could not include all of the
Comins lands, we can conceive of no process of reasoning by which it should be
contemplated to include any greater estate than that specifically set forth by legal
subdivisions.
It is distinguishable from another viewpoint, in that from the testimony of Chandler, the
strongest and most favorable witness for the respondent company, we learn of a distinct
refusal on the part of the appellant Comins to include any greater amount of land than that
embraced within the legal subdivisions, a plat and description of which was furnished by
Comins to Chandler prior to the signing of the instruments.
The rule asserted by this court in the case of McCurdy v. The Alpha Gold and Silver
Mining Co., supra, applicable to the measure of proof in cases of this character, has never
been modified by this court since the time of its enunciation, the language used by the
court in that case, in asserting, as it did, that proof of a greater conveyance than that
described or referred to in the granting clause of a deed should be clear and beyond all
reasonable doubt, requires no explanation.
enunciation, the language used by the court in that case, in asserting, as it did, that proof of a
greater conveyance than that described or referred to in the granting clause of a deed should
be clear and beyond all reasonable doubt, requires no explanation. It is a forceful statement,
couched in plain language, and one worthy of reaffirmance here.
It is the contention of the respondent that the aim and object and purpose of Corbett, the
original purchaser of the land from Comins, were to secure title to all of the water owned by
Comins in Steptoe Creek, and that this was made known to Comins prior to the signing of
any instrument.
It is only necessary for us to note, in this respect, that the deed from Comins to Corbett
conveyed all of the water owned by Comins in Steptoe Creek, regardless of the land on which
it had formerly been applied. The record discloses no claim on the part of appellant to any of
the waters in Steptoe Creek; in fact, appellant, in his testimony, admitted the conveyance of
all of his right to the waters of Steptoe Creek. Hence, that which Corbett sought to acquire in
its entirety, namely, all of the water owned by Comins in Steptoe Creek, was by deed
conveyed to Corbett; and respondent's right to and ownership of that water is not questioned
by the appellant Comins, in so far as the record discloses.
This appeal is taken from the judgment of the lower court decreeing the land in question to
the respondent company; but, as the evidence in this case, as disclosed by the record, fails to
come within the rule of proof prescribed by this court in the case of McCurdy v. The Alpha
Gold and Silver Mining Co., supra, the judgment of the lower court must be reversed and the
case remanded.
It is so ordered.
Petition for rehearing denied.
[Coleman, J., having presided at the trial of the case in the district court, did not participate
in the hearing of the matter on appeal.]
____________
38 Nev. 379, 379 (1915)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA
____________
JULY TERM, 1915
____________
38 Nev. 379, 379 (1915) In Re Oxley and Mulvaney
[No. 2183]
In the Matter of the Application of JAMES OXLEY and JAMES MULVANEY
[149 Pac. 992]
1. Criminal LawDischarge on Preliminary ExaminationBar to Second Examination and
Commitment.
In the absence of statute, the fact that a defendant accused of felony has been discharged on preliminary
examination does not bar examination and commitment upon another complaint, charging the same
offense.
2. Criminal LawDischarge on Preliminary ExaminationBar to Second Examination and
CommitmentStatute.
Stats. 1913, c. 209, provides that if upon preliminary examination on information the accused has been
discharged, the district attorney, upon affidavit of any person who has knowledge of the commission of an
offense, and who is a competent witness to testify, setting forth the offense and the name of the person
charged, upon being furnished with the names of the witnesses for the prosecution, may, by leave of the
court, file an information, and process shall issue thereon. An information was filed, charging defendants
with grand larceny. Upon preliminary examination they were discharged, and thereupon, a second
information, charging the same offense being filed against them, they were committed, and sought habeas
corpus, contending that the statute rendered such commitment invalid. Held, that while such statute was
necessary to authorize prosecution on information, since it contained nothing negativing the magistrate's
power to hold a second preliminaty examination after the accused's discharge, the mere fact that it provided
a method whereby an information could be filed against one so previously discharged
did not operate to change the nonstatutory rule that discharge on a prior examination
is no bar to another examination and a commitment for the same offense.
a method whereby an information could be filed against one so previously discharged did not operate to
change the nonstatutory rule that discharge on a prior examination is no bar to another examination and a
commitment for the same offense.
3. Criminal LawPreliminary ExaminationCredibility of Witnesses.
The credibility and weight of the testimony of a witness on the preliminary examination of one accused of
crime is a matter for the examining magistrate.
4. Habeas CorpusAppealPresumptions Favoring Court BelowEvidence on Preliminary
Examination.
On appeal or habeas corpus the supreme court must assume that the magistrate, committing one accused
of crime on preliminary examination, gave credence to any testimony supporting his decision.
5. Criminal LawEvidenceTestimony of AccompliceNecessity for
CorroborationPreliminary Examination.
The general rule of Rev. Laws, sec. 7180, providing that a conviction of crime cannot be had on the
uncorroborated testimony of an accomplice, is to be applied where the sole witness against the defendant
on his preliminary examination is an accomplice, and a commitment on his uncorroborated testimony is not
on reasonable or probable cause.
Original Proceeding. Petition of James Oxley and James Mulvaney for a writ of habeas
corpus. Writ granted, and petitioners ordered to be discharged from custody.
James Dysart and J. M. McNamara, for Petitioners:
There is no statute authorizing a second arrest and a second preliminary examination
where a party has been discharged by a committing magistrate because of the insufficiency of
the evidence to support the alleged offense. (Rev. Laws, sec. 6930, et seq.) The district
attorney cannot disregard the criminal statutes which provide a method of procedure in
criminal cases. And criminal statutes must be strictly construed. (Wharton, Crim. Law, 11th
ed. vol. 1, p. 52; U. S. v. Clayton, Fed. Cas. No. 14,814; U. S. v. Sheldon, 4 L. Ed. 199; U. S.
v. Morris, 10 L. Ed. 543.)
The evidence is insufficient to warrant the magistrate in ordering the petitioners held to
answer for an alleged offense. (Eureka County Bank Cases, 35 Nev. 80; In Re Kuhns, 36 Nev.
487; In Re Roberson, 38 Nev. 326.) The sole witness against the petitioners is an
accomplice.
The sole witness against the petitioners is an accomplice. A conviction shall not be had on
the uncorroborated testimony of an accomplice. (Rev. Laws, sec. 7180; Words & Phrases,
vol. 1, p. 75.)
This is an original proceeding in habeas corpus. Upon a complaint sworn to on the 24th
day of May, 1915, charging petitioners with the crime of grand larceny, petitioners were
arrested, and thereafter, upon a preliminary examination held before the justice of the peace
in and for Elko township, county of Elko, on the 29th day of May, 1915, petitioners were
ordered discharged from custody upon the ground of insufficiency of the evidence offered to
justify holding the petitioners to answer. Thereafter and on the same day, following the
discharge of petitioners, a second complaint was sworn to before said justice of the peace by
the district attorney of Elko County, charging petitioners with the same offense upon which
the examination had previously been held and petitioners discharged. Upon a warrant issued
on the complaint last mentioned petitioners were arrested and brought before the magistrate.
Thereafter, and on the 7th day of June, 1915, over the objection of counsel for petitioners that
the court was without jurisdiction to conduct a second preliminary examination, a preliminary
examination was held before such justice of the peace, and, following the conclusion of the
same on the 9th day of June, 1915, petitioners were held to answer upon the charge of grand
larceny, and in the absence of bail were committed to the sheriff of Elko County, who now
holds petitioners in custody upon such commitment.
It is the contention of counsel for petitioners that the commitment is void for the reason
that the justice of the peace was without jurisdiction to commit petitioners upon a second
preliminary examination following a discharge upon a previous preliminary examination; the
offense charged being the same in both the proceedings.
charged being the same in both the proceedings. It is further contended that petitioners are
held without reasonable or probable cause. Section 9 of an act entitled An act providing for
the prosecution and punishment of crimes, misdemeanors and offenses by information,
approved March 24, 1913, as amended February 12, 1915, reads as follows:
An information may be filed against any person for any offense when such person has
had a preliminary examination as provided by law before a justice of the peace, or other
examining officer or magistrate, and has been bound over to appear at the court having
jurisdiction, or shall have waived his right to such preliminary examination. If, however,
upon such preliminary examination the accused has been discharged, or the affidavit or
complaint upon which the examination has been held has not been delivered to the clerk of
the proper court, the district attorney may, upon affidavit of any person who has knowledge of
the commission of an offense, and who is a competent witness to testify in the case, setting
forth the offense and the name of the person or persons charged with the commission thereof,
upon being furnished with the names of the witnesses for the prosecution, by leave of the
court first had, file an information, and process shall forthwith issue thereon.
[1] Unless the section of the statute above quoted provides an exclusive method of
procedure in case the defendant has been discharged upon a preliminary examination, the fact
that a defendant accused of the commission of a felony has been so discharged does not bar
another preliminary examination upon a complaint charging the same offense. (Ex Parte
Fenton, 77 Cal. 183, 19 Pac. 267; People v. Dillon, 197 N. Y. 254, 90 N. E. 820, 18 Ann.
Cas. 552; Ex Parte Robinson, 108 Ala. 161, 18 South. 729; State v. Jones, 16 Kan. 608;
Gaffney v. Circuit Judge, 85 Mich. 138, 48 N. W. 478; In Re Garst, 10 Neb. 78, 4 N. W. 511;
State v. Munroe, 26 R. I. 38, 57 Atl. 1057; Commonwealth v. Sullivan, 156 Mass. 487, 31 N.
E. 647; Bishop's Criminal Law, vol.
Bishop's Criminal Law, vol. 1, sec. 114; 12 Cyc. 313; 17 Am. & Eng. Ency. Law, 586.)
[2] We do not think there is anything in the provisions of section 9 of the act authorizing
the district attorney to proceed upon information, quoted supra, which would justify this
court in construing the provisions of that section to operate to change the well-settled law that
a preliminary examination, resulting in the discharge of a defendant, is not a bar to a second
preliminary examination for the same offense. A preliminary examination is in no sense a
trial and hence does not operate to place a defendant in jeopardy, and this is the reason
assigned by the courts why a discharge upon one preliminary examination does not operate as
a bar to a subsequent examination upon the same charge. A prosecution, as that term is
technically understood in the constitution and statutes, is not instituted until an indictment or
information is filed against a defendant. The object of a preliminary examination is simply to
determine whether sufficient evidence exists to warrant holding the defendant to answer,
either upon an indictment returned by a grand jury or information filed by a district attorney.
A discharge of a defendant upon a preliminary examination has never been held to affect the
right of a grand jury to proceed and indict such defendant notwithstanding such discharge.
While a constitutional or statutory provision must exist to authorize a prosecution upon
information, whether the defendant has or has not been held to answer, unless there is
something in the statute clearly negativing the power in a magistrate to hold a second
preliminary examination after a discharge upon a prior preliminary examination for the same
offense, the mere fact that the statute provided a method of procedure, whereby an
information could be filed against a defendant who had been previously discharged, would
not, we think, operate to change the prior existing law governing such examination.
We come now to a consideration of the contention of counsel that petitioners were held
without reasonable or probable cause.
counsel that petitioners were held without reasonable or probable cause. The state offered the
testimony of two witnesses against petitioners at the preliminary examination, but the only
testimony that could be considered material was given by the witness Howard Madden. The
witness Madden testified that, on or about the 10th day of May, 1915, he met the petitioners,
together with one Bently, driving a team hitched to a farm wagon along the road at Town
Creek, in Elko County; that traveling ahead of the team was a bunch of eight or ten cattle;
that Bently requested the witness to ride in ahead of the cattle, which he did, whereupon the
petitioner Mulvaney shot one of the cattle with a rifle; that the witness did not remain after
the animal was shot, but rode on; that he was only present about two minutes; that he saw that
the animal shot was branded with a figure 3; that the brand belonged to Weeks; that the
animal had earmarks, but he could not tell what it was; that upon the former preliminary
examination he testified that he did not see any brand or earmarks on the animal killed; that
the reason he so testified was because he had forgotten that he had seen such brand or
earmarks, but had since remembered that he did; that one of the officers had told him he had
better tell all that he knewthat he might go the road if he didn't tell all that he knew; that
he did not remember what side the brand was on; that his brother told him to think about
whether he could remember that he saw a brand or earmark on the animal killed; that he knew
the animal belonged to Weeks; that he was sure of it; that it was their iron on it; that at the
former preliminary examination he stated that he did not know to whom the animal belonged;
that he was told at first if he would tell all that he knew, they would let him go; that that was
not the reason he changed his testimony; that he did not notice how many cattle in the bunch
were branded with the same iron; that he saw the brand before the animal was killed.
The petitioners were charged with a violation of the provision of section 375 of the
crimes and punishments act {Rev. Laws, sec.
provision of section 375 of the crimes and punishments act (Rev. Laws, sec. 6640) reading:
Every person who, with intent to defraud, or to appropriate to his own use, shall wilfully
kill any animal running at large, not his own, whether branded, marked or not, * * * shall be
deemed guilty of grand larceny.
[3-4] Ordinarily the credibility of a witness and the weight to be attached to his testimony
is a matter for the magistrate to determine, and upon habeas corpus or upon appeal, if there is
testimony supporting the decision or order of the court, this court is bound to assume that
credence was given to such testimony. (Eureka Bank Cases, 35 Nev. 104, 126 Pac. 655; 129
Pac. 308; Ex Parte Allen, 12 Nev. 87; Ex Parte Willoughby, 14 Nev. 451.)
Upon the question of the sufficiency of the evidence to support an order holding a defendant
to answer, this court, in the case of In Re Kelly, 28 Nev. 491, 499, 83 Pac. 223, said:
We are not called upon, on this hearing, to pass upon the sufficiency of this evidence to
warrant the conviction of the defendant, and upon that question express no opinion. In this
connection it is proper to observe that a magistrate, in holding a defendant to answer for a
crime, is not required to have submitted evidence sufficient to establish the guilt of the person
charged beyond a reasonable doubt. As was said in a recent decision (In Re Mitchell, 1 Cal.
App. 396, 82 Pac. 347): In order to hold defendant and put him on his trial, the committing
magistrate is not required to find evidence sufficient to warrant a conviction. All that is
required is that there be sufficient legal evidence to make it appear that a public offense has
been committed, and there is sufficient cause to believe the defendant guilty thereof.
It is the contention of counsel for petitioners, however, that the only testimony in support
of the order was that of an accomplice, and that, in the absence of corroboration, such
testimony is insufficient to support an order holding to answer. We have not had the benefit
of brief or oral argument upon the part of counsel for the state, but an examination of the
record convinces us that the witness Madden should be regarded as an accomplice.
or oral argument upon the part of counsel for the state, but an examination of the record
convinces us that the witness Madden should be regarded as an accomplice. It appears from
his testimony that he rode ahead of the cattle and stopped them, thus aiding in the
perpetration of the offense. At the time of the first preliminary examination he testified that
he was then under arrest upon a similar charge. While the complaints against petitioners are
not in the record, it appears that the charge against the witness was for an offense committed
on or about the same date as the date alleged in the charge against petitioners. The witness
further testified upon the first examination that he had been offered immunity if he would
testify. There is no corroboration whatever of the testimony given by the witness Madden,
and the question is squarely presented whether the uncorroborated testimony of an
accomplice can make out sufficient probable cause to support an order holding a defendant to
answer. The only case squarely in point which we have been able to find is State v. Smith,
138 Ala. 111, 35 South. 42, 100 Am. St. Rep. 26. The Alabama statute, relating to the
testimony of an accomplice, considered in the Smith case, supra, is substantially the same as
section 7180 of our Revised Laws. The Alabama court, speaking through McClellan, C. J.,
said:
The above conclusion leaves but one question in the case. That is whether the
uncorroborated testimony of an accomplice may be sufficient to show probable cause to
believe that a felony has been committed, and that the party under inquiry is guilty thereof. *
* * It is to be noted that this statute in terms operates only to prevent convictions of felony on
the testimony of an accomplice. It does not in terms apply to preliminary examinations, nor to
trials on habeas corpus, nor to the exclusion of a finding of probable cause for believing that
an offense has been committed, and that the accused is guilty thereof, on such examination or
trial. Yet, in our opinion, its effect will be to stamp a policy upon the administration of the
law in this connection which cannot be carried out unless it be given operation upon cases
where the inquiry is probable cause vel non, as well as where the inquiry is as to absolute
guilt.
cannot be carried out unless it be given operation upon cases where the inquiry is probable
cause vel non, as well as where the inquiry is as to absolute guilt. The statute infects the
testimony of accomplices with such absolute infirmity as that not only may the citizen be not
convicted upon it, but as also that he should not be deprived of his liberty in anticipation of a
final trial upon it. A consideration of practicabilities in the administration of the criminal law,
so to speak, would seem to enforce the same conclusion. Why should the citizen be held to
the grand jury, or indicted by the grand jury on testimony upon which no petit jury could
possibly convict him? What good end could be served by such a proceeding? Can there be
said to be even probable cause shown in any case by testimony which the law expressly and
positively declares to be insufficient to support a conviction? We think not. * * * To hold him
would be a vain and useless thing, involving his incarceration not as a punishment for crime
and not really to the end that he should be tried for a crime charged of his probable guilt of
which there is evidence to prove, but at the best upon a mere speculation that evidence may
be found to corroborate that of the accomplice. The evidence before the probate judge in this
case tending to show the guilt of the petitioner was that of the accomplice alone and
uncorroborated. The judge correctly discharged the petitioner, and his order to that effect is
affirmed.
The Court of Appeals of California, in Re Mitchell, 1 Cal. App. 396, 82 Pac. 347, touched
upon a similar question in the following manner:
It is next claimed there is no evidence connecting the petitioner with the commission of
the offense, except that of the witness Holmes, who is shown * * * to be a coconspirator and
an accomplice. * * * The evidence of the witnesses N. Jakuliza, A. Prothero, J. W. Ling,
Martinovich, Arnold Adams, and Thomas Fulton, taken together, tends in a strong degree to
identify the petitioner as one of the guilty parties, and tends to connect him with the
commission of the offense. The evidence produced upon the preliminary examination,
independent of that given by the accomplice Holmes, would probably not be sufficient to
show beyond a reasonable doubt the guilt of petitioner, but, in order to hold the
defendant and to put him on his trial, the committing magistrate is not required to find
evidence sufficient to warrant a conviction."
evidence produced upon the preliminary examination, independent of that given by the
accomplice Holmes, would probably not be sufficient to show beyond a reasonable doubt the
guilt of petitioner, but, in order to hold the defendant and to put him on his trial, the
committing magistrate is not required to find evidence sufficient to warrant a conviction.
[5] Were we inclined to doubt the wisdom of viewing the uncorroborated testimony of an
accomplice with the same strictness when considering it in reference to a preliminary
examination as upon a trial, we are quite sure that a comparison of the testimony given by the
witness Madden upon the second examination with that given by him upon the first
examination would remove any such doubt. His conflicting and utterly irreconcilable
statements in reference to material matters affords a concrete illustration of the fact that the
rule had its origin in necessity.
Petitioners having been committed to the custody of the sheriff of Elko County on a charge
of grand larceny without reasonable or probable cause, it is ordered that they be discharged
forthwith from custody upon such commitment.
____________
38 Nev. 389, 389 (1915) Ex Parte Crosby
[No. 2178]
In the Matter of the Application of CHARLES S. CROSBY
[149 Pac. 989]
1. FishGameJurisdiction of StateStatutes.
The state has inherent right as a sovereign power to enact laws for the protection and preservation of fish
and game in the waters and upon the land within its limits, and he who takes such fish and game does so as
a privilege, and not a right; the privilege being subject to such conditions and limitations as the state may
impose.
2. IndiansCrimes on Indian ReservationsJurisdiction of State Courts.
The rule that state courts have jurisdiction over offenses committed by parties other than Indians on
Indian reservations is not affected by a provision in the enabling act for taking account of Indian lands or
Indian reservations within the territory, or providing that such Indian lands shall remain under the absolute
jurisdiction and control of Congress.
3. FishProtectionStatutes.
Stats. 1913, c. 270, sec. 9, making it unlawful to catch or have in one's possession on any calendar day
more than ten pounds of certain kinds of fish, is a statute properly enacted under the police power of the
state for the preservation and protection of fish within the public waters thereof.
4. IndiansCrimes on Indian ReservationsFish and Game Laws.
A justice of the peace has jurisdiction of a prosecution for violating Stats. 1913, c. 270, sec. 9, making it
unlawful to catch or have in one's possession more than a certain amount of fish on any calendar day,
although the offense is committed by a white person within the limits of an Indian reservation; the state
having control of the fish and game within its boundaries.
Original Proceeding. Charles S. Crosby was arrested in Washoe County for a violation of
the fish and game laws, and he applies for a writ of habeas corpus. Writ denied.
M. B. Moore, for Petitioner:
The state has no jurisdiction to prosecute for an alleged offense committed within an
Indian reservation. Under the territorial enabling act approved March 2, 1861, jurisdiction
over Indians and their property was not included. (Rev. Laws, sec. 192.) The Pyramid Lake
Reservation is Indian territory, and the right of whites, as well as the exclusive right of the
Indians, to fish and hunt therein has been determined. {U. S. v. Leathers, 6 U. S. 17; U. S.
v. Sturgeon, 6 U. S. 29.)
the exclusive right of the Indians, to fish and hunt therein has been determined. (U. S. v.
Leathers, 6 U. S. 17; U. S. v. Sturgeon, 6 U. S. 29.)
The state has no jurisdiction to punish any one for the violation of its game and fish laws
within an Indian reservation. (In Re Lincoln, 129 Fed. 247.)
It is not unlawful for any person, either Indian or white man, to have more than ten pounds
of trout, where said trout are taken from waters not of the State of Nevada. (People v. McNeil,
71 Mich. 325; State v. McGuire, 24 Or. 370; Commonwealth v. Holl, 128 Mass. 410.)
E. F. Lunsford, District Attorney, and A. N. Salisbury, Deputy District Attorney, for
Respondent:
The state laws are operative over and upon the Pyramid Lake Indian Reservation against
all white persons committing offenses thereon. The fish and game laws are not operative
against Indians on the reservationnot because the Indians are located on the reservation, but
because they are wards of the government. The cases cited by petitioner do not support his
contentions in regard to the case at bar.
This is an original proceeding in habeas corpus. The petitioner, Charles S. Crosby, was
arrested within the boundaries of the Pyramid Lake Reservation, the same being an Indian
reservation in this state set apart by the United States government for the use and occupation
of the Pah Ute Indians. Petitioner was charged with a violation of an act of the legislature of
the State of Nevada, entitled An act to provide for the protection and preservation of trout
and other fish in the waters of the State of Nevada, and other matters pertaining thereto, etc.
Section 9 of the act is as follows:
It shall be unlawful for any person or persons, firm, company, or corporation, to take,
catch, or kill from any of the waters of the State of Nevada, or to have in his, their, or its
possession, on any one calendar day, more than ten pounds of trout, or of land-locked
salmon, or royal chinook salmon, or large-mouthed or small-mouthed black bass, or
whitefish caught in the waters of this state; provided, that nothing in this act shall be so
interpreted as to prevent or to prohibit the taking of ten trout, or salmon, or other fish
specified in this act."
their, or its possession, on any one calendar day, more than ten pounds of trout, or of
land-locked salmon, or royal chinook salmon, or large-mouthed or small-mouthed black bass,
or whitefish caught in the waters of this state; provided, that nothing in this act shall be so
interpreted as to prevent or to prohibit the taking of ten trout, or salmon, or other fish
specified in this act. (Stats. 1913, p. 436.)
The facts as admitted are as follows: The petitioner, a white man and a citizen of this state,
resided in and about Pyramid reservation, and was engaged in the business of buying fish
from the Indians of the reservation and transporting them to places of market. At the time of
his arrest, he was within the confines of the Pyramid reservation, and had in his possession
more than ten fish and more than ten pounds of fish. It is admitted that the fish in the
possession of petitioner at the time of his arrest were caught by individual Indians on the
Pyramid Lake Reservation. Petitioner, having been arrested, was tried before the nearest
justice of the peace, to wit, in Wadsworth township, and was by said justice of the peace
convicted and sentenced to pay a fine of $25 and to serve one day in the county jail of
Washoe County.
It is the contention of petitioner that the fish and game laws of the State of Nevada are not
operative, even as against persons not Indians, within the confines of Pyramid Lake Indian
Reservation, and that the justice of the peace of Wadsworth townshipwhich embraces the
said Pyramid reservationdid not have jurisdiction to hear the case, and that the same is a
subject for the jurisdiction of the United States courts.
It is the contention of attorney for the respondent that the State of Nevada possesses power
to control and regulate the taking of game and fish from all the public waters within the
confines of this state, contending that the state has the power to regulate the taking of fish
from Pyramid Lake by persons other than Indians, even though the said lake be within the
Indian reservation.
The Pyramid Lake Indian Reservation was definitely created and the lands embraced
therein withdrawn from sale or disposition, by order of President Grant on March 23,
1S74, some ten years after the admission of this state into the Union.
created and the lands embraced therein withdrawn from sale or disposition, by order of
President Grant on March 23, 1874, some ten years after the admission of this state into the
Union. We have been unable to find the existence of any treaty or agreement between the
government and the Pah Utes, or other tribe of Indians, relative to or affecting the territory
embraced within this reservation, either prior or subsequent to the admission of this state. The
state has by no act of which we are aware ever relinquished jurisdiction over this territory.
[1] It may be asserted as an established proposition of law that it is a right inherent in the
state, as the sovereign power, to enact laws for the protection and preservation of fish and
game in the waters and on the land within the confines of its territory. Wild fowl and fish in
public waters are the subjects of public protection, control, and regulation, in so far as
preservation is concerned, and he who takes such fish or game does so as a privilege, not a
right, and the taking under the privilege thus accorded is subject to such conditions and
limitations as the sovereign power of the state, speaking through its legislature, has seen fit to
impose. (State v. Rodman, 58 Minn. 393, 59 N. W. 1098; State v. Northern Pacific Express
Co., 58 Minn. 403, 59 N. W. 1100; Geer v. Connecticut, 161 U. S. 533, 16 Sup. Ct. 600, 40
L. Ed. 793; Magner v. People, 97 Ill. 333; Ex Parte Maier, 103 Cal. 476, 37 Pac. 402, 42
Am. St. Rep. 129; Kidd v. Pearson, 128 U. S. 1, 9 Sup. Ct. 6, 32 L. Ed. 346; Phelps v. Racey,
60 N. Y. 10, 19 Am. Rep. 140.)
The legislature of this state having enacted the statute sought to be enforced here, for the
purpose of protecting and preserving the fish of the public waters of the state, the question
here presented, in view of the admitted facts, resolves itself into the proposition as to whether
or not a white man can disregard the provisions of the statute when his acts in such respect
are done within the confines of an Indian reservation.
[2] That the state courts have jurisdiction over offenses committed by parties other than
Indians on Indian reservations is, we think, well established; and this general rule is not
affected by a provision in the enabling act of a state taking account of Indian lands or Indian
reservations within the territory or providing that such Indian lands should remain under the
absolute jurisdiction and control of the Congress of the United States. (Draper v. United
States, 164 U. S. 240, 17 Sup. Ct. 107, 41 L. Ed. 419.)
In the case of United States v. McBratney, 104 U. S. 621, 26 L. Ed. 869, the Supreme
Court of the United States said:
Whenever, upon the admission of a state into the Union, Congress has intended to except
out of it an Indian reservation, or the sole and exclusive jurisdiction over that reservation, it
has done so by express words. (The Kansas Indians, 5 Wall. 737, 18 L. Ed. 667; United
States v. Ward, Woolw. 17, Fed. Cas. No. 16, 639.)
In that case it was held that a state, by its admission into the Union upon an equal footing
with the original states, had, without an exception, expressly set forth in the enabling act of
admission, criminal jurisdiction over its own citizens and persons other than Indians on
reservations throughout the whole of the territory within its limits, including an Indian
reservation, even where such reservation existed before the organization and admission of the
state. This decision, however, took into account such exceptions as might arise by reason of
the express declaration on the part of Congress made in contemplation of existing treaties
entered into between the Indians and the government prior to the admission of the state. Such
a condition does not exist in the case at bar.
The Supreme Court of the United States, in the case of Pollard v. Hagan, 3 How. 212, 11
L. Ed. 565, and again in Shivley v. Bowlby, 152 U. S. 1, 14 Sup. Ct. 548, 38 L. Ed. 331,
definitely settled the proposition that, under the provisions of the federal constitution, the
rights and powers which belonged to the original thirteen states, applicable to the public
waters within their respective territories, must be conceded to each new state admitted
into the Union, because such was essential in order to establish to each state rights on an
equal footing with the original states.
to the public waters within their respective territories, must be conceded to each new state
admitted into the Union, because such was essential in order to establish to each state rights
on an equal footing with the original states. The sovereign rights and powers inherent in and
exercised by the original states in the way of regulation, restriction, and licensing the
enjoyment by individuals in the privilege of taking fish from the public waters are powers
which must be conceded to each of the states on a basis of equality with the original states.
(McCready v. Virginia, 94 U. S. 391, 24 L. Ed. 248; Manchester v. Massachusetts, 139 U. S.
240, 11 Sup. Ct. 559, 35 L. Ed. 159.)
In the case of Manchester v. Massachusetts, supra, the Supreme Court of the United States
held that a statute of Massachusetts enacted for the protection of fisheries in Buzzard's Bay
was valid, and that its enforcement was within the jurisdiction of the state courts within what
was generally recognized as the territorial limits of the state by the law of nations. It was there
held that the state courts of Massachusetts could lawfully take jurisdiction of a violation of
the statute of the state, even though the party violating was a vessel licensed for the fishing
trade pursuant to the laws of the United States, and the act took place on waters over which
the United States had control. The primary ground upon which the court there based its
decision was that in the control of fisheries within the state the state government was
supreme. We find this case referred to approvingly in the case of United States v. Alaska
Packers (C. C.) 79 Fed. 152.
The waters of Pyramid Lake, although entirely embraced within the confines of the
Pyramid Lake Indian Reservation, are undoubtedly public waters of this state, to the extent, at
least, that state regulation of the taking of fish from such waters by parties other than Indian
wards of the government may be effective. The same principle applies as to the operation of
statutes such as this, with reference to parties, not Indian wards of the government, violating
its provisions as to the limit of catch or the number of fish had in possession on any one
calendar day.
[3] Statutes such as the one sought to be enforced against petitioner are properly enacted
under the police power of the state, and have as their object the protection and preservation of
fish within the public waters of the state, to the end that the fish of public bodies of water
may propagate their specie; that such stream may not be entirely depleted of that which
furnishes a wholesome food for mankind. The statutes of the several states, as well as those
found in Canada and England, set forth what might be termed ingenuous schemes devised by
the legislative bodies to prevent the violation of the spirit of the law enacted for the
preservation of fish and game. In some jurisdictions, exportation by any means is prohibited;
in others, sale or disposition is prohibited, while in still others either entire prohibition is
prescribed for certain territory, or for a specified length of time, or the means or manner of
taking or catching is so limited as to make such taking or catching dependent upon skill. All
of these statutes are an aid in the accomplishment of the ultimate objectprotection and
preservation.
[4] The legislature of this state, having in mind a desire to prevent wholesale slaughter of
the fish of the public waters, placed a limit upon the catch which might be made by any one
individual, as well as the amount and number that any one person might have in his
possession upon any one calendar day, and fixed that limit as in section 9 prescribed.
In the case of Ward v. Race Horse, the Supreme Court of the United States, speaking
through Mr. Justice (now Chief Justice) White, held, by analogy based upon the decisions of
that court in Cardwell v. American Bridge Co., 113 U. S. 205, 5 Sup Ct. 423, 28 L. Ed. 959,
and Willamette Iron Bridge Co. v. Hatch, 125 U. S. 1, 8 Sup. Ct. 811, 31 L. Ed. 629, that a
treaty entered into between the government and the Indians within the territory embraced in
the State of Wyoming, which treaty gave the right to the Indians to hunt on unoccupied lands
of the United States in the hunting districts, was repealed by reason of the conflict between
the treaty itself and the subsequent act admitting the state into the Union, which
subsequent act of admission made no mention of the existing treaty; and the basis for
this decision was the fact that the power of all the states to regulate the killing of game
within their borders being admitted, the State of Wyoming, coming into the Union on an
equal footing with the original states, could not be deprived of the power of this
regulation.
the subsequent act admitting the state into the Union, which subsequent act of admission
made no mention of the existing treaty; and the basis for this decision was the fact that the
power of all the states to regulate the killing of game within their borders being admitted, the
State of Wyoming, coming into the Union on an equal footing with the original states, could
not be deprived of the power of this regulation. (Ward v. Race Horse, 163 U. S. 504, 16 Sup.
Ct. 1076, 41 L. Ed. 244.)
In the case of Geer v. Connecticut, supra, also a decision by Mr. Justice (now Chief
Justice) White, an exhaustive review of the law applicable to this subject is set forth.
In a very recent case, decided in the United States District Court for the Eastern District of
Arkansas, the court reviewed many of the decisions to which we have referred herein, and
while that case is not entirely in point as affecting the matter at bar, it is nevertheless there
held that:
The states retain the police power which they, as sovereign nations, possessed prior to the
adoption of the national constitution, so far as such power pertains to the internal affairs of
the state.
In this decision, we find a reiteration of the principle that wild game and fish in public
waters alike are the property of the states in their sovereign capacity, as the representatives
and for the benefit of all of their people in common; from which principle, so often asserted
by the several courts, it follows, as a matter of course, that the right of protection and
preservation of game and fish is a matter for state legislation, and a subject over which the
state courts have jurisdiction when a violation of such laws in brought before them by proper
process, and where a party accused is one over whose person the state courts have
jurisdiction. (United States v. Shauver, 214 Fed. 154.)
It is true that in the case of New York Indians, 5 Wall. 761, 18 L. Ed. 708, the power of the
state to exercise its right of taxation as against lands embraced within an Indian
reservation, which reservation existed prior to the adoption of the constitution of the
United States, was denied; but no case has been brought to our attention in which the
criminal laws of the state have been declared to be inoperative, where a violation of such
laws was perpetrated by a citizen of the state within an Indian reservation.
right of taxation as against lands embraced within an Indian reservation, which reservation
existed prior to the adoption of the constitution of the United States, was denied; but no case
has been brought to our attention in which the criminal laws of the state have been declared to
be inoperative, where a violation of such laws was perpetrated by a citizen of the state within
an Indian reservation. And, indeed, it seems unreasonable to suppose that a law, enacted
under the police power of the state to accomplish a wholesome purpose for the benefit of all
of the people of the state, might be violated and an immunity created against the violator
because of his having either taken refuge in or having lived or abided in an Indian reservation
existing within the state. The power of the state courts to try offenses committed under such
circumstances, and their power to enforce a law of this character where its violation took
place on an Indian reservation by a person not an Indian or ward of the government, cannot,
in the light of the decisions of the Supreme Court of the United States herein referred to, be
questioned.
We are referred to the case of In Re Lincoln (D. C.) 129 Fed. 247, and it is the contention
of petitioner that the reasoning in that case supports his position here. It must be observed,
however, that in that case the court laid special stress upon the fact that the petitioner being a
ward of the government and residing on allotted lands within the boundaries of an existing
Indian reservation, the justice court was without jurisdiction to enter judgment under a
conviction for the violation by him of a statute prohibiting the killing of game during a certain
season of the year. It is not to be even presumed that the court in that case would have held
that one not an Indian or ward of the government could have violated the statute there in
question on the reservation without coming within the jurisdiction of the state courts.
From the foregoing it follows that the petitioner, as well as the subject-matter of the
offense charged, was properly within the jurisdiction of the justice court of Wadsworth
township, and the petition for the writ herein sought to be perpetuated should be denied.
properly within the jurisdiction of the justice court of Wadsworth township, and the petition
for the writ herein sought to be perpetuated should be denied.
It is so ordered.
____________
38 Nev. 398, 398 (1915) Bank of Italy v. Burns
[No. 2160]
BANK OF ITALY (A Corporation), Appellant, v. C. P. BURNS and A. A. BURKE,
as Sheriff of Washoe County, State of Nevada, Respondents.
[150 Pac. 249]
1. Appeal and ErrorLate filing Below of StatementApplication for RefilingAffidavit
of Merits.
Where plaintiff made a late filing below of its statement on appeal, its complaint and the reply, denying
the affirmative matter in the answer, having been verified, its application for relief from the default should
not have been denied merely for failure to file an affidavit of merits, since the trial court, to which the
application was made, had the pleadings before it and had heard the evidence, and so could consider them
in determining the question of the merits of the appeal.
2. Appeal and ErrorLate filing of statement BelowEntry of DefaultApplication for
Relief.
In considering an application for relief from the entry of a default for late filing below of a statement on
appeal, the trial court should grant the relief sought in a case of doubt.
Appeal from Second Judicial District Court, Washoe County; A. N. Salisbury, Judge.
Action by the Bank of Italy against C. P. Burns and A. A. Burke, as Sheriff of Washoe
County. Judgment for defendants, and plaintiff, appealing from denial of its motion for new
trial, made late filing of its statement in the trial court. Defendants' motion to strike the
statement from the files was granted, and plaintiff appeals from an order denying an
application that the matter be reopened, and that it be permitted to refile its statement.
Reversed, with directions.
Mack & Green, for Appellant:
No affidavit of merits was required in the lower court in support of appellant's motion to be
relieved from its default. (Sherman v. Southern Pacific Co., 31 Nev. 285.) It is universally
held that where there is any doubt as to whether or not the relief should be granted, that
doubt should be resolved in favor of the relief.
It is universally held that where there is any doubt as to whether or not the relief should be
granted, that doubt should be resolved in favor of the relief. (Banta v. Siller, 121 Cal. 414; 53
Pac. 935; Vinson v. L. A. P. R. R. Co., 147 Cal. 479, 82 Pac. 53; Watson v. R. R. Co., 41 Cal.
20; Sherman v. S. P. Co., 31 Nev. 285; Melde v. Reynolds, 129 Cal. 308.)
Dodge & Barry, for Respondents:
The opening or refusing to open a default is a matter of discretion in the court. (23 Cyc.
895b.)
The court had no authority to open the default or to relieve appellant from its negligence
and inadvertence, because of the failure of appellant to present and file an affidavit of merits.
(Erving v. Napa Valley B. Co., 16 Cal. App. 41; Estate of Keating, 158 Cal. 109.)
Appellant, who was plaintiff in the trial court, brought suit in the district court of Washoe
County to recover possession of an automobile truck. Upon the trial before the court without
a jury judgment was rendered in favor of the defendants. A motion for a new trial was
regularly made, and denied by the court. Appellant gave notice of appeal to this court. The
time in which to file a statement on appeal in the lower court expired on September 22, 1914,
and the statement was filed on September 23. A motion was made by the respondents to
strike the statement from the files because it had not been filed in time, which motion was
granted by the court. Thereafter appellant made application to the trial court, under section
5084, Revised Laws, to open up the matter and to be permitted to refile its statement, on the
grounds of excusable neglect and inadvertence. In support of the application affidavits were
filed by C. E. Mack and F. D. King, neither of which was controverted. From the affidavit of
Judge Mack it appears that he was the only attorney for plaintiff who was sufficiently familiar
with the facts of the case to prepare a statement on appeal, and that on account of sickness
he was unable to prepare the statement in time to file it on September 22, 1914; that on
that day he applied to Mr.
and that on account of sickness he was unable to prepare the statement in time to file it on
September 22, 1914; that on that day he applied to Mr. Dodge, of the firm of Dodge & Barry,
who were attorneys for the respondents, for a stipulation extending the time in which to file
the statement, but that he was informed that Mr. Barry was away from home, and that he
(Dodge) would not sign a stipulation extending said time, but that, if plaintiff needed a day or
two extra time, it might have the same, and that respondents would not take advantage of the
default.
The affidavit also shows that on the same day, about 3 p. m., Judge Mack went to the
courthouse to get an order from Judge Moran, before whom the case was tried extending the
time, but, failing to find him at the courthouse, he went down the street, and came upon him
in conversation with F. D. King, Esq., when he told Judge Moran, in the presence of Mr.
King, that he had been sick, and that his work had fallen behind, and that he was the only
attorney who knew enough about the case to prepare the statement, and that that was the last
day upon which the statement could be filed, and asked him to go to the courthouse with him
and make an order extending the time five days for the filing of the same.
The affidavit also recites that Judge Moran stated that plaintiff might have additional time,
but that it was not necessary for them to go to the courthouse at that time, and that he (Judge
Moran) would later in the day attend to the matter, and that affiant understood the said Moran
to mean that he would later in the day make and enter an order in said cause extending for
five days the time within which appellant might file and serve a statement on appeal.
The affidavit of King was substantially the same as the one made by Mack, except that he
said that Mr. Mack stated to Judge Moran that the time within which to file the statement
would expire on the following day (September 23), and that Judge Moran said he would fix it
in the morning.
Judge Moran did not make an affidavit, but it appears that on the 29th day of September
the appellant filed an order under date of September 22, 1914, signed by Judge Moran, which
purported to give appellant five days' additional time. We think this a circumstance
corroborating Judge Mack's statement, for it is evident Judge Moran would not have dated the
order as of the 22d if he had not understood that that was the day he was to have made it. It
also appears from the affidavit of Judge Mack that at the time the statement on appeal was
filed on September 23 he believed that Judge Moran had made the order on September 22,
extending the time for filing and serving the statement.
No counter affidavits were filed by respondents, and the only objection which they made
to the granting of the order sought was that there was no showing of merits on the part of
appellant. Judge Salisbury, who heard the matter on the application to set aside the default
and grant further time to appellant in which to file its statement on appeal, was of the opinion
that respondents' objection was not well taken, but denied the application on the ground that
there was no showing that the appeal which appellant desired to take was to be taken in good
faith and not merely for delay.
In this court respondents renew the objection made in the court below that there was no
showing of merits, and hence no prejudice was done appellant by the order of the trial court.
This court held in Sherman v. Southern Pacific Co., 31 Nev. 285, 102 Pac. 257, that a
default for failure to file and serve a statement on appeal in time might be set aside upon a
showing; and, since respondents do not contend that a sufficient showing was not made in the
court below of excusable neglect and inadvertence, but simply that there was no showing of
merits, we will proceed upon the theory that the showing of excusable neglect and
inadvertence was sufficient, and consider only the question of the lack of a showing of merits,
and the question of lack of showing that the appeal was sought to be taken in good faith, and
not for delay merely, suggested by the lower court, upon which the application was
denied.
in good faith, and not for delay merely, suggested by the lower court, upon which the
application was denied.
[1] In support of the contention that the failure to make a showing of merits is fatal to the
application, counsel for respondents have cited Estate of Keating, 158 Cal. 109, 110 Pac. 109,
and the case of Erving v. Napa Brewing Co., 16 Cal. App. 41, 116 Pac. 331. Those were
cases in which applications were made in the appellate court to be relieved from default for
failing to take certain necessary steps to perfect an appeal in the appellate court, and where
there was nothing before the court which could be considered upon the question of merits.
This is not a similar situation. In the case at bar the application for relief was made in the
court where the trial had been had, and where the complaint of appellant and other pleadings
were filed, and where the evidence was heard, all of which were available for consideration
by the court. In the case of Melde v. Reynolds, 129 Cal. 308, 61 Pac. 932, where an
application was made in the trial court for an order for relief against a judgment, it is said:
An affidavit of merits made by the defendant in person is not a jurisdictional element for
granting relief under this section, and in a case like the present may be dispensed with if the
court is otherwise satisfied that the application is meritorious and is made in good faith, and
not merely for delay. The verified answer of the defendant contradicting all the averments of
the complaint was on file, and could be considered by the court for the purpose of
determining this fact. See Fulweiler v. Mining Co., 83 Cal. 126, 23 Pac. 65; Merchants'
Ad-Sign Co. v. Los Angeles Bill-Posting Co., 128 Cal. 619, 61 Pac. 277. The court had before
it also the affidavit of Mr. Murasky, and, in addition thereto, could take into consideration the
evidence that had been presented on behalf of the plaintiff at the time the judgment was
rendered. Under these circumstances, it was authorized to hold that a further affidavit from
the defendant was not necessary.
The situation in the case just quoted from was more nearly the one at bar than the ones
cited by counsel for respondents, and we think the logic of it more applicable.
A verified answer containing matter constituting a defense was, of itself, an affidavit of
merit. (San Diego Realty Co. v. McGinn, 7 Cal. App. 264, 94 Pac. 376; Fulweiler v. Hog's
Back Con. Min. Co., 83 Cal. 126, 23 Pac. 65; Merchants' Ad-Sign Co. v. Los Angeles Bill P.
Co., 128 Cal. 619, 61 Pac. 277.) In the case at bar plaintiff filed not only a verified complaint,
but filed also a verified reply denying the affirmative matter pleaded in defendants' answer.
The language of the court in the Melde case, supra, where it was said, If it [the trial court]
had deemed a further affidavit requisite, or if the plaintiff had made objection to the
application on this ground [lack of showing of merits], it should have continued the hearing a
sufficient time to enable it to be procured, is of peculiar application to the case at bar, since
the application was denied upon a ground not urged by counsel for respondents.
[2] While no doubt exists in our minds as to what should have been the order of the court,
it may not be out of place for us to say that, in considering an application for relief from the
entry of a default, we believe that it is the better practice, in a case of doubt, for the court to
grant the relief sought. (Banta v. Siller, 121 Cal. 414, 53 Pac. 935; Vinson v. L. A. P. R.R.
Co., 147 Cal. 479, 82 Pac. 53; Sherman v. Southern Pacific Co., 31 Nev. 292, 102 Pac. 257.)
Under all the circumstances in this case, we feel that the trial court should have granted the
application.
It is the order of the court that the order appealed from be reversed, and the trial court is
directed to enter an order setting aside plaintiff's default and allowing reasonable time to
plaintiff in which to file and serve its statement on appeal.
____________
38 Nev. 404, 404 (1915) Christensen v. Duborg
[No. 2130]
H. C. CHRISTENSEN, Appellant, v. C. H. DUBORG, H. ANDERSON, and
M. SKOW, Respondents.
[150 Pac. 306]
1. BrokersCommissionsWhen Earned.
Defendants employed plaintiff to procure a purchaser for stock in the P. Company. On September 9,
1909, after his contract had expired S. took an option to purchase the stock for $125,000, and defendants
agreed in consideration of the services rendered in the sale of the stock to pay plaintiff 10 per cent
commission. Subsequently they executed a compromise agreement, agreeing to pay plaintiff $3,000
commission on the sale of such stock. S. did not exercise the option and made no payments on the stock.
Held, that plaintiff was not entitled to a commission, as the so-called compromise was only a compromise
of the amount, and it was to be paid only upon the actual consummation of the sale.
2. BrokersActions for CommissionsPleadingVariance.
Plaintiff sued, alleging that prior to September 9, 1909, he performed services in procuring the sale of
stock; that defendants agreed to pay him 10 per cent commission on all moneys received from the sale of
the stock as received and thereafter, by way of compromise, agreed to pay him $3,000 for such services.
The evidence showed that two of the defendants, after S.'s option to purchase had expired and after they
had purchased the stock of the third defendant, agreed with S., in consideration of the allotment to them of
3,000,000 shares of the stock of another company, to transfer to such company a controlling amount of the
stock of the P. Company, and to convey to it certain land; that sales were to be made to develop certain
properties and raise $325,000, which was to be divided equally between the parties to the agreement; and
that a sale of all or part of such 3,000,000 shares was made from which such two defendants realized a
large sum of money. Held, that plaintiff could not recover, because of variance.
3. PaymentOperation and EffectAdmission of Liability.
Plaintiff performed services in attempting to procure a purchaser for corporate stock for which he
claimed he was entitled to $3,000 from defendants. In an interview with defendants one of them said he
was entitled to something, and they offered him $500, which he refused. He offered to settle for $1,500, but
defendants offered him $750, stating that they would pay him more later, and he accordingly accepted the
$750. Held, that there was no recognition by defendants of any legal liability to plaintiff by virtue of the
former contractual relations, and the payment of the $750 did not change their moral obligation to plaintiff
into a legal debt.
Action by H. C. Christensen against C. H. Duborg and others to recover for services
alleged to have been rendered in procuring the sale of mining stock. From a judgment for
defendants and an order denying a new trial, plaintiff appeals. Affirmed.
Thomas A. Brandon and Fred B. Hart, for Appellant:
If the principal and a third person enter into a contract as a result of the agent's
intervention, the agent is not deprived of his right to compensation by the fact that the
contract so concluded differs in terms from the one he was employed to negotiate. (Scovell v.
Upham, 56 N. W. 812; Goech v. Company, 96 S. W. 431; Reynolds v. Tompkins, 23 W. Va.
229; Dexter v. Campbell, 137 Mass. 198; Nash v. Hill, 62 Ill. 216; Nesbitt v. Helsey, 49 Mo.
383.) If the agent be the procuring cause of the transaction, he is entitled to compensation for
effecting it. (Wasmer v. McLean, 49 N. H. 463; Sinclair v. Galland, 8 Daly, 508; Germander
v. Hansen, 27 L. T. R. 394; Stinde v. Bleache, 42 Mo. App. 578.) If the principal puts it out
of his power to sell, he is then liable for the the agent's services. (Ford v. Easley, 55 N. W.
336; Fox v. Rouse, 11 N. W. 384.)
The court below erred in adopting the theory of the respondents that there was a variance
between the proof and the allegations of the complaint. (Peters v. Foss, 20 Cal. 586; 2
Abbott, Trial Ev. 340, 523-529; Randall v. Rich, 11 Mass. 494; Ainslee v. Wilson, 7 Cow.
662; Ralston v. Wood, 15 Ill. 171; Eppinger v. Kendrick, 114 Cal. 620; Bank v. Sherman, 33
N. Y. 69; Edgerton v. West, 30 South. 797; Whitaker v. Engles, 69 N. W. 493.)
George Martinson and B. F. Curler, for Respondents:
It was necessary to allege the performance of the contract on the part of the plaintiff. (19
Cyc. 274; Sullivan v. Milliker, 113 Fed. 93, 99.) The complaint should allege a sale, or that
the plaintiff procured a purchaser who was ready, willing, and able to purchase. (Jacobs v.
Shenon, 29 Pac. 44; Booth v. Moody, 46 Pac.
884; McGavock v. Woodliff, 20 How. 222, 15 L. Ed. 884; Chaffee v. Widman, 139 Am. St.
Rep. 245, note.)
An agent, who produces a person who enters into a conditional agreement of option only,
has not produced a purchaser, and is not entitled to commission. (Keach v. Bunn, 116 Ill.
App. 397; Dyer v. Raborn, 33 Pac. 350; Yeager v. Kelsey, 49 N. W. 199; Massie v. Chattom,
163 Cal. 772; Smith v. Post, 138 Pac. 705.)
This is an appeal from a judgment in favor of the respondents, following an order
sustaining a motion for a nonsuit, and from an order denying a motion for a new trial.
Appellant, who was plaintiff in the trial court, brought suit against the respondents,
Duborg, Anderson, and Skow, to recover judgment in the sum of $2,250. Omitting the formal
portions of the amended complaint, it reads as follows:
That prior to the 9th day of September, A. D. 1909, he performed services for defendants
as their agent in procuring the sale of 500,000 shares of Philadelphia Western Mining stock,
at their special instance and request; that on the 9th day of September, A. D. 1909, for and in
consideration of plaintiff's said services rendered as aforesaid, the defendants agreed in
writing to pay to the plaintiff 10 per cent commission on all moneys received from the said
sale of said stock as the same was received; that thereafter plaintiff and defendants entered
into a further agreement by way of compromise as to the amount of said compensation,
defendants thereby agreeing to pay plaintiff for his said services the sum of $3,000, and
plaintiff agreed to take said sum in full compensation for his said services; that thereafter
defendants paid plaintiff on said last-mentioned agreement the sum of $750, and no more,
leaving a balance due and unpaid on said last-mentioned agreement of the sum of $2,250.
From a careful reading of the amended complaint it will be seen that appellant bases his
cause of action upon three facts, viz: First, that prior to September 9, 1909, he procured a
sale of certain stock; second, that on September 9, 1909, respondents, in consideration of
his said services {already performed), agreed to pay 10 per cent of all moneys received
from the sale of said stock; and, third, that thereafter appellant and respondents entered
into a compromise as to the amount which appellant was to receive, fixing a flat sum of
$3,000.
three facts, viz: First, that prior to September 9, 1909, he procured a sale of certain stock;
second, that on September 9, 1909, respondents, in consideration of his said services (already
performed), agreed to pay 10 per cent of all moneys received from the sale of said stock; and,
third, that thereafter appellant and respondents entered into a compromise as to the amount
which appellant was to receive, fixing a flat sum of $3,000.
The first question to be determined is: Did appellant procure the sale of the stock
mentioned? If he did not, the question of the amount of the compensation agreed upon, if any,
need not be considered.
[1] The evidence given in behalf of appellant tends to show that in July, 1909, he entered
into an agreement with respondents to procure for them a purchaser for 600,000 shares of
stock in the Philadelphia Western Mining Company, and in the event of the sale, pursuant to
the terms of the contract, he was to receive a certain commission as compensation for his
services. After procuring this contract, appellant went to Goldfield, where he induced one M.
C. Scully to visit and examine the property of the company, but no sale was made under the
terms of the contract. A contract, however, in the nature of an option to purchase, was entered
into between the respondents and said Scully on September 9, 1909, after appellant's July
contract had expired. By its terms respondents agreed to place in escrow with the Nixon
National Bank of Reno 500,000 shares of the Philadelphia Western Mining Company's stock
to be delivered to said Scully, his heirs or assigns, upon the payment by Scully, on or before
April 1, 1910, to the bank, to the credit of respondents, of $125,000.
At or about the time of the making of the option agreement with Scully a paper, of which
the following is a copy, was executed by the respondents:
Rock Creek Canyon, Sept. 9th, 1909.
For and in consideration of the services rendered as agent in the sale of 500,000 shares of
Philadelphia Western Mining stock, we, the undersigned, hereby agree to pay to H. C.
Christensen 10 per cent. commission, such commission to be paid each time a payment on
said stock is made. [Signed] C. H. Duborg,
to pay to H. C. Christensen 10 per cent. commission, such commission to be paid each time a
payment on said stock is made. [Signed] C. H. Duborg,
Henry Anderson,
M. Skow.
The evidence on the part of appellant tended to show (and it is not disputed, as we
understand it) that the services mentioned in the statement of September 9, just quoted,
related to the option agreement between respondents and Scully of even date, that in the event
Scully complied with the terms of his option, appellant would be paid. Thereafter a statement
was signed by respondents, of which the following is a copy:
Hilltop, Sept. 9th, 1909.
We, the undersigned, owners of 500,000 shares of Philadelphia Western Mining stock, do
hereby agree to to pay to H. C. Christensen ($3,000.00) three thousand dollars commission on
the sale of said stock.
[Signed] C. H. Duborg,
Henry Anderson,
M. Skow.
While appellant testified that he thought this statement was signed about two months after
its date, he said it might have been as late as March, 1910, that it was signed; the appellant
dating it September 9, 1909, as he testified, to connect the transaction with the Scully option.
Scully paid nothing upon the stock under the option agreement, which expired April 1, 1910.
Had all dealings between the respondents and Scully ceased upon the failure of Scully to
comply with the terms of the option to purchase the stock mentioned, it is clear that the
appellant would have no cause of action against respondents, for the reason that there was no
sale. The so-called compromise was only a compromise of the amount, and it was to be paid
only upon the actual consummation of the sale. We think the authorities are practically
unanimous to the effect that before a broker is entitled to a commission for making a sale,
where an option is taken, the payments provided for in the option agreement must be
made.
is entitled to a commission for making a sale, where an option is taken, the payments
provided for in the option agreement must be made. (19 Cyc. 253.)
A contract by a broker to find a purchaser for land is not performed, so as to entitle him
to a commission, where he procures one who merely obtained an option on the land, and
made no offer to purchase. (Dinkelspiel v. Nason, 17 Cal. App. 595, 120 Pac. 790, citing
authorities.)
See, also, 19 Cyc. 252; Aigler v. Carpenter Place Land Co., 51 Kan. 718, 33 Pac. 593;
Keach v. Bunn, 116 Ill. App. 397; Lawrence v. Pederson, 34 Wash. 1, 74 Pac. 1011; Massie
v. Chattom, 163 Cal. 772, 127 Pac. 56.
[2] The court sustained an objection to an offer of proof on the part of the appellant to
show that on June 29, 1910, about three months after the option held by Scully had expired,
respondents Duborg and Anderson, who had then purchased the stock of respondent Skow,
entered into an agreement with said Scully, wherein it was recited that, in consideration of the
allotting to the said Anderson and Duborg by Kimberly Consolidated Mines Company of
3,000,000 shares of its capital stock, the said Anderson and Duborg would transfer to that
company the controlling number of shares of the capital stock of the Philadelphia Western
Mining Company, and convey to it a certain 40-acre tract of land; that sales were to be made
from the 3,000,000 shares of Kimberly Consolidated Mines Company stock to develop and
operate certain properties controlled by the company, and to raise the further sum of
$325,000, which was to be divided equally between the parties to the agreement; that,
through the efforts of Scully and another party whom he had interested in the venture, a sale
of all or a portion of the 3,000,000 shares of the Kimberly Consolidated Mines Company
stock was made, from which Anderson and Duborg realized a large sum of money.
We do not think the court erred in sustaining the objection to this offer. It will be observed
that the option agreement which appellant was instrumental in procuring had expired; that
Skow, one of the parties to the original contract with him, had disposed of his interest to
the other two parties to it; that another element entered into the transaction offered to be
proved, viz: the 40-acre tract of land; that a trade was sought to be established, and not a
sale; and that the stock was sold for a "larger sum of money," and not for the amount
called for by the terms of the option agreement.
procuring had expired; that Skow, one of the parties to the original contract with him, had
disposed of his interest to the other two parties to it; that another element entered into the
transaction offered to be proved, viz: the 40-acre tract of land; that a trade was sought to be
established, and not a sale; and that the stock was sold for a larger sum of money, and not
for the amount called for by the terms of the option agreement.
Appellant brought his suit upon the theory that a sale had been made prior to the 9th day
of September, A. D. 1909, and not upon the theory of having been the procuring cause of a
trade between Scully and different parties from those who signed the statement of September
9, and upon an additional consideration moving to Scully; in fact, the evidence sought to be
introduced would tend to prove an entirely different state of facts from those pleaded.
It is a fundamental rule that judgment shall be secundum allegata et probata, and any
departure from that rule is certain to produce surprise, confusion, and injustice. Pleadings and
a distinct issue are essential in every system of jurisprudence, and there can be no orderly
administration of justice without them; and if a party can allege one cause of action, and then
recover upon another, his pleadings can serve no useful purpose, but will rather ensnare and
mislead his adversary. (9 Cyc. 748.)
There are cases which have proceeded in disregard of the pleadings and wherein the whole
case has been presented by both parties in their proofs without objection, in which an
amendment has been allowed after the evidence was closed to conform the pleadings to the
proofs. But, when objection is seasonably taken, or an exception presents the question, it is
fatal to a recovery that it does not conform in all material respects to the allegations of the
pleadings. The court will not ignore the whole office of a pleading and compel the parties to
try their cases in the dark. (9 Cyc. 750.)
See, also, 19 Cyc. 275.
When a litigant finds that the facts will not sustain the cause of action pleaded, but will
justify a recovery upon another theory, he may make an application to the court to amend his
pleading, and upon a proper showing and terms the court may, in its discretion, permit an
amendment; or a plaintiff who finds that he cannot sustain the cause of action alleged, and
thinks that there are sufficient facts to sustain a different kind of action, may, under our
statute, at a certain stage of the trial, abandon his case, whereupon a judgment of nonsuit will
be entered by the court. (Rev. Laws, sec. 5237.) Such a judgment is no bar to another action.
[3] It was shown in evidence that appellant was paid $750 by defendants Duborg and
Anderson in November, 1911. Plaintiff testified:
Q. At the time of the payment of the $750 to which you testified yesterday, did you have
any conversation with Mr. Duborg and Mr. Anderson at that time? A. Yes.
Q. Will you state what that conversation was? A. I told Mr. Anderson and Mr. Duborg
that the $3,000 was due me, that they had received their money to the amount of $1,000, * * *
and that my money was due, this $3,000, and I had come down to get it.
Q. What did they say? A. Mr. Anderson said that I was entitled to something, and they
agreed to pay me $500 first; Mr. Duborg offered me $500 first; and I told Mr. Duborg it was
not enough, that I had waited a long time for it, and I expected to get it all.
Q. What did they say further, if anything? A. Mr Anderson said they had concluded I was
entitled to something, and they would pay me. Mr. Duborg said they would pay me $500.
Q. What did you say to that? A. I said it was not enough. I told them first that they had
received their money, and Mr. Anderson said that they had a lot of money to pay out besides.
Q. Did he mention in what way? A. He told me they had paid their attorneys $10,000, and
they said they had to give Matt Skow considerable money, and that there might be other
things coming up they would have to pay for.
had to give Matt Skow considerable money, and that there might be other things coming up
they would have to pay for. Finally Mr. Duborg offered me $750. I then offered to settle for
$1,500 altogether, but they didn't seem to want to do that. Mr. Anderson said they would pay
me some more after a while, so I agreed to take the $750 that day, and Mr. Anderson told Mr.
Duborg to make me out a company check, which he did. He handed me the check at one of
the desks in the Nixon National Bank, and I asked if he wanted a receipt, and he said No,'
and I took the check and went to the window, to the cashier's window, and got my money in
gold.
The $750 which appellant testified he received was paid by a company check; and,
assuming this payment to have been made by respondents Duborg and Anderson, it does not
strengthen the case of appellant. The only inference deducible from the testimony relative to
this payment is, we think, that Anderson and Duborg would not recognize a legal liability by
virtue of the former contractual relations, but that they considered appellant morally entitled
to something, not because of the terms of the contract, but because his efforts were entitled
to some consideration. As said in 30 Cyc. 1220: Part payment will not change what was
originally a mere moral obligation into a legal debt.
Perceiving no prejudicial error, it is ordered that the judgment appealed from be affirmed.
_____________
[No. 2129]
STATE OF NEVADA, Respondent, v. JOSE
SALGADO, Appellant.
[150 Pac. 764]
ON REHEARING
1. HomicideCoexistence of Express Malice and Irresistible PassionExpress
MaliceIrresistible Passion.
While malice and passion may coexist, and a homicide be the result of both, express malice and
irresistible passion, as defined in the statute, cannot coexist; premeditation and deliberation being in
express malice, and wanting in irresistible passion.
2. HomicideInstructionsPrejudicial Error.
The evidence in homicide being such as to to make important the giving of correct instructions on first-
and second-degree murder, instructing that irresistible passion, if proved, will not reduce the offense from
first-degree murder, where the killing was done with express malice, was prejudicial.
3. HomicideDesignManner of Killing.
Where death is produced by stabbing, unless accompanied by other peculiar circumstances, the mere fact
of stabbing will not preclude other considerations negativing a formed design against deceased's life.
Appeal from Fourth Judicial District Court, Elko County; E. J. L. Taber, Judge.
Jose Salgado was convicted of murder in the first degree, and appealed. Judgment affirmed
(38 Nev. 64, ante). Petition for rehearing granted, on which judgment reversed and new trial
granted.
Harold P. Hale and E. A. Klein, for Appellant:
The court erred in instructing the jury in regard to the degree of the alleged crime. Express
malice and irresistible passion cannot coexist. (State v. Vaughn, 22 Nev. 300; Maher v.
People, 10 Mich. 212; State v. Hoyt, 13 Minn. 132; State v. Henderson, 22 Pac. 1030; Davis
v. People, 114 Ill. 86; State v. Ah Mook, 12 Nev. 369; State v. Lopez, 15 Nev. 407; State v.
Hill, 20 N. C. 629, 34 Am. Dec. 396; State v. Johnson, 23 N. C. 364, 35 Am. Dec. 742;
People v. Sanchez, 24 Cal. 30; Smith v. State, 83 Ala. 26; Hornsby v. State, 94 Ala. 55, 10
South. 522; Martin v. State, 119 Ala. 1, 25 South. 255; Wharton's Crim. Law, vol. 1, pp. 605,
606.)
Geo. B. Thatcher, Attorney-General; E. T. Patrick, Deputy Attorney-General; E. P.
Carville, District Attorney, and Chas. A. Cantwell, Deputy District Attorney, for Respondent:
The case of State v. Johnson, 23 N. C. 364, upon which counsel for appellant place much
reliance, does not support their contention. If one actuated by express malice in the course of
the killing works himself into an irresistible passion before striking the fatal blow, that will
not serve to reduce the degree of the crime. (State v. Lopez, 15 Nev. 408.)
Malice and irresistible passion are not always necessarily inconsistent terms in the law of
homicide. (Michie on Homicide, p. 189, et seq.; Wharton on Homicide, 3d ed. pp. 99, 201.)
The state of mind at the time of forming the intent to kill, and not subsequently,
determines the question of malice. (State v. Ah Mook, 12 Nev 376; State v. Hill, 34 Am. Dec.
396; State v. Henderson, 32 Pac. 1030.)
Instructions should all be considered and construed together. (Territory v. Hart, 17 Pac.
718; State v. Brooks, 57 Pac. 1042.)
A rehearing was granted in this case in order that further consideration might be given to
the following instruction:
Nor will irresistible passion, if proved to have existed, be sufficient to reduce the degree
our statute express malice necessarily renders any murder, murder of the first degree.
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
murder of the first degree."
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.
In the former opinion in this case (38 Nev. 64, ante), 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.
circumstances of the killing show an abandoned and malignant heart.
The jury were 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. 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 instructions and 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.
[1] 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
subsequently aroused passion would not operate to reduce the degree of homicide. I 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. As 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.
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 an 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.
[2] 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.
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. The 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.
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 stuck defendant several
times in the face; that he had his arm around defendant's neck and was hitting him when
defendant drew his knife from his 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.
Andy was standing and stabbed her to death. The whole proceeding did not exceed a minute
or two in time. From a relationship 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.
[3] 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. 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
considerations negativing a formed design against the life of the deceased.
For the reasons given, the judgment is reversed, and the cause remanded for a new trial.
I dissent.
The instruction, the giving of which is assigned as error, is as follows:
Nor will irresistible passion, if proven to have existed, be sufficient to reduce the degree
our statute express malice necessarily renders any murder, murder of the the first degree.
establishing beyond a reasonable doubt that 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.
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.
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 or 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.
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. 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:
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.
to exist in the mind of the slayer at the time of delivering the fatal blow, fixes the homicide as
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. 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 the
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.
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 and 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, a 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 may 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.
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.
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. 426, 426 (1915) Goldfield Consol. Milling & Transp. v. Old Sandstorm Annex Co.

[No. 2139]
THE GOLDFIELD CONSOLIDATED MILLING AND TRANSPORTATION COMPANY
(A Corporation), Respondent, v. THE OLD SANDSTORM ANNEX GOLD MINING
COMPANY (A Corporation), W. H. BROCK, E. S. JOHNSON, and A. HUYSER,
Appellants.
[150 Pac. 313]
1. MotionsDismissalTime for Dismissal.
In a condemnation proceeding, defendant moved to set the proceeding down for hearing on the questions
of whether the use to which the property was to be applied was one authorized by law and whether the
taking of the property was necessary. The court evidently made an order setting the matter for hearing on
January 21, and on that day defendants made an application to dismiss their former motion to set the matter
for hearing. Held, that the court properly denied this application, as the motion to set the matter for hearing
and been acted upon, and all that the court could have done would have been to vacate the order setting the
matter for hearing, which it was not asked to do.
2. Eminent DomainProceedings to Take LandHearingSplitting Causes.
In a proceeding to condemn certain patented mining claims upon which to deposit tailings from an ore
mill, defendants moved to set the cause down for hearing on the questions of whether the use was one
authorized by law, and whether the condemnation was necessary. On the hearing they objected to the court
disposing of the further question whether the use to which the property was to be applied was a more
necessary public use than that to which the land was already appropriated. Held, that this question was so
interwoven with the other two questions that the rule against splitting causes of action
applied and the court properly determined such question.

two questions that the rule against splitting causes of action applied and the court properly determined such
question.
3. Eminent DomainPublic UsesMines and Milling.
Rev. Laws, sec. 2456, provides that mining for gold, silver, etc., and other valuable mineral, is the
paramount interest of this state, and is hereby declared to be a public use. Section 2458 authorizes any
citizen to enter upon private unfenced and unimproved land and prospect thereon for precious metals.
Section 5606 provides that the right of eminent domain shall be exercised for the public uses therein
specified including roads, railroads, etc., and dumping places to facilitate the milling, smelting, or other
reduction of ores, or the working of mines, and for all mining purposes, outlets, natural or otherwise, for
the deposit of tailings, etc., from mills, smelters, or other works for the reduction of ores. Held, that the use
of land as a place upon which to deposit tailings from an ore mill is a public use and land may be
condemned therefor.
4. AbandonmentElementsIntent.
A company engaged in milling and reducing ores deposited tailings from ores purchased by it on its own
land in a gulch, through which water at times flowed in great volume, making it necessary to dam up the
tailings so that they would not be washed away. This damming process eventually forced the tailings on
defendant's adjoining land. The tailings were valuable and could be re-treated profitably, and the company
intended to re-treat them. In placing them on defendant's land it acted on legal advice, and there was
testimony that it did not intend to abandon the tailings. Held, that the evidence warranted the conclusion
that the company did not abandon the tailings so as to give defendants title thereto, since abandonment is
the relinquishment of a right or the giving up of something to which a party is entitled, and, in determining
whether one has abandoned his property or rights, the intention is the paramount object of inquiry.
5. Eminent DomainEntry Before CondemnationOwnership of Property.
Where a corporation, invested with the power to condemn land as a place upon which to deposit tailings
from its ore mill, placed such tailings upon the land of another without the owner's consent and
subsequently instituted proceedings to condemn such land, the common-law rule that a structure erected by
a tort-feasor becomes a part of the land did not apply.
6. Eminent DomainNecessity of CondemnationEvidence.
In a proceeding to condemn land as a place for the deposit of tailings from an ore mill, evidence held to
show that such land was necessary for that purpose.
7. Eminent DomainNecessity of Condemnation.
An absolute necessity for the identical lands sought to be condemned is not necessary to authorize their
condemnation.

8. Eminent DomainNecessity of Condemnation.
That there were other lands further away available for the purpose did not prevent the condemnation of
land as a place for the deposit of tailings from an ore mill, since it is the general rule that, when a
corporation seeks to exercise the right of eminent domain, its discretion in the selection of land will not be
questioned if it acts in good faith and not capriciously.
9. Eminent DomainProperty subject to AppropriationProperty Previously Devoted to a
Public Use.
Where property sought to be condemned as a place for the deposit of tailings from an ore mill, though
located and patented as mining ground, had not been worked for several years, the mere possibility that it
might be used in the future for mining purposes did not prevent condemnation, especially where the party
seeking to condemn was willing that the order of condemnation should provide that defendants might carry
on mining operations so far as such use of the land did not interfere with its operations, and it appeared
likely that the tailings, after being re-treated, would be carried away by the flood waters and a large portion
of the land thereby freed from such tailings.
10. Eminent DomainTitle or Rights AcquiredStatutory Provisions.
Rev. Laws. sec. 5607, provides that the estates and rights in land therein specified are subject to be taken
for a public use, including a fee simple when taken for public buildings, etc., or for an outlet for a place for
the deposit of debris or tailings of a mine, mill, smelter, or other place for the reduction of ores. Held, that
only such an interest in land desired as a place for the deposit of tailings as is necessary can be taken, as the
statute does not say that a fee simple shall be taken, but only that it is subject to be taken.
11. JuryRight to Jury TrialCondemnation Proceedings.
In a proceeding to condemn land as a place for the keeping of tailings from an ore mill, defendants
contended that tailings already placed on their lands were abandoned by plaintiff and had become their
property, and that there was therefore no necessity for condemning the land as a place to store such tailings.
Held, that defendants were not entitled to a jury trial on this question of ownership of the tailings, as it was
an incident of the determination of the right of condemnation which was a question solely for the court.
Judge.
Condemnation proceeding by the Goldfield Consolidated Milling and Transportation
Company against the Old Sandstorm Annex Gold Mining Company and others.

From an interlocutory order, the defendants appeal. Affirmed.
D. H. Kehoe, for Appellants:
Private property shall not be taken for public use without just compensation first having
been made. (Sec. 8, art. 1, Const. Nev.; art. 5, U. S. Const.) The evidence shows very clearly
that plaintiff never had any right or authority to take or use any part of the land of defendants.
The legislative power does not extend to the taking or damaging of the private property of
one person for the benefit of another. (Sutter County v. Nichol, 152 Cal. 668, 93 Pac. 872;
State v. Super. Ct., 78 Pac. 1011.) A subordinate agency can exercise the power of eminent
domain only when it is expressly granted by the legislative authority. (Weitzel v. Spokane I.
Ry. Co., 117 Pac. 864, 116 Pac. 855.) The mill of respondent is a private enterprise, and does
not come within the provision of the constitution which permits the taking of private property
for public use. (Con. Chan. Co. v. C. P. R. R. Co., 51 Cal. 269.)
Authority to condemn lands for public use must be found in positive law. (Wash. Power
Co. v. Waters, 186 Fed. 572.) Eminent domain cannot be exercised unless by virtue of a
statute expressly or impliedly conferring the power. (San Joaquin Irr. Co. v. Stevenson, 164
Cal. 221.)
Statutes delegating the right of eminent domain to corporations are to be strictly construed.
(6 Am. & Eng. Ency. Law, 552; S. V. W. W. v. San Mateo W. W., 64 Cal. 123, 28 Pac. 447;
Pather v. R. R. Co., 52 Ind. 16; Railroad Co. v. Wilson, 49 Cal. 396; S. P. R. R. Co. v.
Wilson, 49 Cal. 396.) Where there is any doubt of the extent of the power, the land owner
must have the benefit of the doubt. (15 Cyc. 567.) Statutes authorizing condemnation of
private property for public use are not to be extended by inference or implication. (Pather v.
R. R. Co., supra.)

The use for which property is desired must be such as will subserve the public in the sense
that they shall have the right to demand the service of the corporation as of right. (Shasta
Power Co. v. Walker, 149 Fed. 568, affirmed 160 Fed. 856.) Eminent domain cannot be
exercised so as to enable one corporation to condemn the franchises and property of another
for the same purpose. (4 Thomp. Corp., sec. 5620; 2 Kent's Com. 339.) Nor to enable a
person to build a flume on the land or another, to carry off the tailings from his mine. (Con.
Chan. Co. v. R. R. Co., 51 Cal. 269; Wulzen v. Board, 101 Cal. 15; Lorenz v. Jacobs, 63 Cal.,
73; In Re Eureka Basin W. Co., 96 N. Y. 42; Lindsay Irr. Co. v. Mertheus, 97 Cal. 676.)
A corporation cannot condemn whatever it may find convenient and profitable to acquire,
on the ground that it may save expense. (Fenwick v. London Ry. Co., 64 Cal. 123-131, 28
Pac. 447.)
The complaint does not show any public necessity. (Cummings v. Peters, 56 Cal. 593.) To
authorize the condemnation of any particular land by a company to which power has been
delegated, a necessity must exist for the taking thereof for the use and purpose of the party
instituting the proceedings. (15 Cyc. 632, 633, 634.) The fact that a statute authorizes the
condemnation of land for a particular use, does not raise the presumption that such purpose is
a public use. (Healy Lumber Co. v. Morris, 74 Pa. 681; Amador Queen M. Co. v. Dewit, 16
Pac. 74.)
A party cannot go upon the land of another without permission and construct a ditch or
other obstructions without first executing the right of eminent domain. (Emerson v. Eldorado
Ditch Co., 18 Mont. 247, 44 Pac. 969; Fitzpatrick v. Montgomery, 50 Pac. 416; Esmond v.
Chew, 15 Cal. 137; Iron Co. v. Tucker, 48 Ohio St. 41, 26 N. E. 630.) When respondent went
upon the lands of appellants it was a trespasser. (Robinson v. Southern Cal. Ry. Co., 61 Pac.
947; Hull v. R. R. Co., 21 Nev. 371; Ewing v. City, Wall. 413, 18 L. Ed. 657; Potter v. Ames,
43 Cal. 75; Peterson v. Bean, 61 Pac. 213.) Being a trespasser, the tailings placed upon the
land belong to the owners of the land.

the tailings placed upon the land belong to the owners of the land. (Van Size v. R. R. Co., 3
Hun, 463, 10 Am. Rep. 56.) Respondent never had right or authority to deposit tailings on the
lands of defendants. (Dower v. Richards, 15 Pac. 105.)
The question of the title and ownership of the tailings on the land was not properly before
the court, and the demand of appellants for a jury trial to pass upon the title to the tailings
should have been granted. (Kohl v. U. S., 91 U. S. 376, 23 L. Ed. 449; Weston v. Charleston,
2 Pet. 464, 7 L. Ed. 481; Chicago, B. & Q. Ry. Co. v. Chicago, 166 U. S. 226, 41 L. Ed. 979.)
Hoyt, Gibbons & French and Benjamin J. Henley, for Respondent:
The right of eminent domain has been delegated by the legislature for the purpose of
mining and milling. (Rev. Laws, sec. 5606.) This section makes them a public use, and the
right of eminent domain may be exercised in carrying them on. (Highland Boy G. M. Co. v.
Strickland, 78 Pac. 296, 50 U. S. 581; Lewis on Eminent Domain, 3d ed. sec. 254, et seq.;
Dayton M. Co. v. Seawell, 11 Nev. 394; Overman S. M. Co. v. Corcoran, 15 Nev. 147;
Byrnes v. Douglass, 83 Fed. 45; Miocene Ditch Co. v. Jacobsen, 146 Fed. 680; Lindley on
Mines, 2d. sec. 254, et seq.)
The court had the power, without a jury, to determine the ownership of the tailings at the
time of the hearing. (City of Los Angeles v. Pomeroy, 57 Pac. 585; S. V. W. Wks. v. San
Francisco, 22 Cal. 434; Hooker v. Los Angeles, 47 U. S. 487; Beaulieu Vineyard v. Superior
Court, 91 Pac. 1015; Pinney v. Borough of Winsted, 66 Atl. 337.) The constitutional right of
jury trial does not relate to suits in equity and special proceedings. (Lake v. Tolles, 8 Nev.
290; Crosier v. McLaughlin, 1 Nev. 353; Van Fleet v. Olin, 4 Nev. 95.) A condemnation
proceeding is not one according to the course of the common law, but is a special proceeding.
(15 Cyc. 806; Spencer Creek W. Co. v. Vallejo, 48 Cal. 70; Kennebec Water Dist. v.
Waterville, 52 Atl. 774; Ingram v. Maine W. Co., 57 Atl.

Ingram v. Maine W. Co., 57 Atl. 893; Tripp v. Overocker, 1 Pac. 695.)
Respondent is the owner of the tailings which have been deposited upon the lands of the
appellants. To constitute an abandonment there must be a concurrence of intent to abandon
and decisive act of the party. (1 Cyc. 5; Middle Ditch Creek Co. v. Henry, 39 Pac. 1058;
Ritter v. Lynch, 123 Fed. 935; St. John v. Kidd, 26 Cal. 271; Mallett v. Mining Co., 1 Nev.
168; Barnett v. Dickinson, 48 Atl. 840; Worsham v. State, 120 S. W. 443; Hawke v.
Wentworth, 39 Pac. 809.) Even if the tailings were not personal property, they would still
remain the property of plaintiff. (15 Cyc. 763; Oregon R. &. N. Co. v. Mosier, 13 Pac. 300;
Searl v. School Dist., 33 U. S. 740; Calumet River Ry. Co. v. Brown, 26 N. E. 501; Illinois
Cent. R. Co. v. LeBlanc, 21 South. 760; Railway Co. v. Strand, 46 Pac. 238; Sutherland on
Damages, vol. 4, p. 3153; Cal. P. R. R. Co. v. Armstrong, 46 Cal. 85; Barringer & Adams on
Mines, 608, et seq.; Ritter v. Lynch, 123 Fed. 930.)
The use of the land is necessary for the further deposit of tailings by respondent. (Lewis on
Eminent Domain, 2d ed. sec. 601; 15 Cyc. 633; Overman S. M. Co. v. Corcoran, 15 Nev.
156; State v. Superior Court, 87 Pac. 739; Central Pacific Ry. Co. v. Feldman, 92 Pac. 849;
O'Hara v. Chicago M. & N. R. Co., 28 N. E. 923; Kansas City Ry. Co. v. Vicksburg Co., 21
South. 155; 51 South. 714; S. V. W. W. v. Drinkhouse, 28 Pac. 681; Postal T. & T. Co. v.
Oregon S. L. R. Co., 65 Pac. 729.)
Although the land sought to be condemned is owned and held as a mining claim, it has not
been shown that it is now being used for mining purposes. It is not therefore appropriated to a
public use, and the use to which it is sought to be appropriated is a more necessary public use.
(Spanish River Boom Co. v. Union Boom Co., 73 Pac. 672; Byrnes v. Douglass, 83 Fed. 45,
59 Fed. 29; Lewis on Eminent Domain, sec. 440; Postal T. & T. Co. v. Oregon S. L. R. Co.,
65 Pac. 671; St. Louis Ry. Co. v. Hannibal Depot Co., 28 S. W. 485; S. Pacific Ry. Co. v. So.

So. Cal. Ry. Co., 43 Pac. 602; Gold v. Railway Co., 53 N. E. 285.)
Respondent instituted proceedings in the district court of Esmeralda County to condemn
portions of certain patented mining claims belonging to appellants. From an order of the court
made upon the hearing of certain preliminary questions, an appeal has been taken.
The respondent alleges in its complaint that it is organized for the purpose of milling, and
reducing by other methods, gold, silver and other ores, and that it now is, and for a long time
past has been, engaged in the carrying on of the said business of milling and reducing ores;
that the said respondent is authorized by the laws of the State of Nevada to condemn, for use
in the carrying on of its business, the rights sought to be condemned; that in the operation of
said mill there are discharged therefrom large quantities of pulverized rock and earth,
commonly known as tailings, without the discharge of which it is impossible to operate the
said mill, and that said tailings are valuable and are being conserved by respondent for
re-treatment; that, in the continued operation of the said mill, all of the lands owned by the
respondent and accessible for their deposit became covered with the said tailings, and that it
became necessary for the respondent to enter upon and use the lands of other persons for the
deposit and storage of said tailings; that large quantities of said tailings are deposited upon
the lands described in the complaint, within retaining dams erected by the respondent for their
conservation, and that it is necessary to its business that the respondent be given the right by
condemnation to use the surface of said lands as a storage place for the said tailings, and as a
place for the disposal, treatment, and reduction thereof; that the use to which respondent
seeks to put the surface of the said land is a more necessary use than the use to which the said
surface of the land is now appropriated.

appropriated. The respondent alleges that it is not desirous of harassing the appellants or
interfering with their mining operations, and offers, in the event an order of condemnation is
entered in the action, that such order may provide that appellants may enter upon the premises
and conduct mining operations, with due regard to the preservation and protection of the
tailings of the respondent.
The answer of the appellants admits their ownership of the lands in issue, and denies most
of the material allegations of the complaint, denies that there is any necessity for the
condemnation, and alleges that the tailings which have been deposited upon the lands by the
respondent were abandoned by the respondent and are now the property of appellants.
Section 5614, Revised Laws, provides for the determining by the court or judge, before
condemnation, of three questions, viz:
(1) Is the use to which the property is to be applied a use authorized by law?
(2) Is the taking of the property sought to be condemned necessary to such use?
(3) If the land is already appropriated to a public use, is the use to which it is sought to
apply it a more necessary public use?
[1] After the issues in the case had been formed, counsel for appellants served notice upon
respondent that he would on December 6 apply to the court to set down for hearing by the
court questions 1 and 2, above stated. While the record is silent as to the order made on that
day, it is evident that the court made an order setting the matter for hearing on January 21, for
at that time counsel for appellants made an application to dismiss his motion of December 6
to set the matter for hearing, and upon objection thereto it was denied, and the court
proceeded to hear the preliminary questions in the proceeding.
We do not think appellants could have dismissed their motion.

motion. The motion had served its purpose. The court had acted upon it. All that could have
been done would have been for the court to have vacated its order setting the matter for
hearing, which the court was not asked to do.
[2] Objection was made to the disposal of question 3 by the court, since it was not
included in the notice to set it for hearing, and the overruling of the objection is assigned as
error. Under the circumstances of this case, the three questions disposed of are so interwoven
as to enable the court to dispose of them all upon substantially the same evidence. When the
court announced its intention of disposing of question 3 at the same time as the other
questions, appellants could have moved for a continuance if they deemed further time
necessary. But since no continuance was requested, and particularly in view of the fact that
substantially the same evidence was necessary to enable the court to pass upon all three
questions, we are unable to see how appellants could possibly have been prejudiced. Why
should not the court dispose of all of the matters at one time? The determination of any one of
these questions against respondent would necessarily have terminated the proceedings and
obviated the necessity of taking testimony as to damages. It seems to us that the reason for the
rule against splitting causes of action applies with equal force in this situation.
The principle which prevents the splitting up of causes of action, and forbids double
vexation for the same thing, is a rule of justice, and not to be classed among technicalities.
(Dutton v. Shaw, 35 Mich. 431.)
It has been held to be the better practice to hear the preliminary matters first. (Balto. & O.
R. Co. v. P. W. & Ky. R. Co., 17 W. Va. 847.)
[3] In determining if the use to which respondent seeks to put the land sought to be
condemned is one authorized by law, it is necessary to consider the policy of the state toward
the mining and milling of precious metals.

metals. And right here it may be said that mining will become a lost art unless the ores
produced from the mines can be economically reduced, for mining is dependent upon the
facilities for treating the ore economically.
By section 1, article 10, of the constitution of Nevada, as originally adopted, the mines of
the state were exempt from taxation. While this section has been amended so as to permit the
assessing for the purpose of taxation of all patented mining claims, still every patented
mining claim upon which $100 worth of work is done annually is exempt from taxation.
(Stats. 1913, c. 83, p. 106.) The very purpose of the change was to stimulate mining.
Section 2456, Revised Laws, reads:
* * * Mining for gold, silver, copper, lead, cinnabar, and other valuable mineral, is the
paramount interest of this state, and is hereby declared to be a public use.
Section 2458, Revised Laws, provides that any citizen of the United States may enter upon
any unfenced and unimproved land (except mining claims) held in private ownership, and
prospect thereon for various precious metals.
Section 5606, Revised Laws, provides, inter alia, that:
The right of eminent domain shall be exercised in behalf of the following public uses:
* * * (6) Roads, railroads, tramways, tunnels, ditches, flumes, pipes, and dumping places to
facilitate the milling, smelting, or other reduction of ores, or the working of mines, and for all
mining purposes; outlets, natural or otherwise, for the deposit or conduct of tailings. * * *
Can there be any doubt as to the policy of the state toward the mining and milling industry
of the state? And who can doubt the wisdom of this policy, when we stop to consider the
prevailing conditions in the state?
The language of the Supreme Court of the United States, in Clark v. Nash, 198 U. S. 361,
25 Sup. Ct. 676, 49 L. Ed. 1087, 4 Ann. Cas. 1171, is applicable to the case at bar. It is there
said:
In some states, probably in most of them, the proposition contended for by the plaintiffs
in error would be sound.

be sound. But whether a statute of a state permitting condemnation by an individual for the
purpose of obtaining water for his land or for mining should be held to be a condemnation for
a public use, and therefore a valid enactment, may depend upon a number of considerations
relating to the situation of the state and its possibilities for land cultivation, or the successful
prosecution of its mining or other industries. Where the use is asserted to be public, and the
right of the individual to condemn land for the purpose of exercising such use is founded
upon or is the result of some peculiar condition of the soil or climate, or other peculiarity of
the state, where the right of condemnation is asserted under a state statute, we are always,
where it can fairly be done, strongly inclined to hold with the state courts, when they uphold a
state statute providing for such condemnation. The validity for such statutes may sometimes
depend upon many different facts, the existence of which would make a public use, even by
an individual, where, in the absence of such facts, the use would clearly be private. Those
facts must be general, notorious, and acknowledged in the state, and the state courts may be
assumed to be exceptionally familiar with them. They are not the subject of judicial
investigation as to their existence, but the local court know and appreciate them. They
understand the situation which led to the demand for the enactment of the statute, and they
also appreciate the results upon the growth and prosperity of the state, which, in all
probability, would flow from a denial of its validity. These are matters which might properly
be held to have a material bearing upon the question whether the individual use proposed
might not in fact be a public one. It is not alone the fact that the land is arid and that it will
bear crops if irrigated, or that the water is necessary for the purpose of working a mine, that is
material; other facts might exist which are also material, such as the particular manner in
which the irrigation is carried on or proposed, or how the mining is to be done in a particular
place where water is needed for that purpose.

The general situation and amount of the arid land, or of the mines themselves, might also be
material, and what proportion of the water each owner should be entitled to; also, the extent
of the population living in the surrounding country, and whether each owner of lands or
mines could be, in fact, furnished with the necessary water in any other way than by the
condemnation in his own behalf, and not by a company, for his use and that of others.
Public use is in every case a matter of local policy. (15 Cyc. 581; Madera R. Co. v.
Raymond G. Co., 3 Cal. App. 668, 87 Pac. 27; Highland Boy G. M. C. v. Strickley, 28 Utah,
215, 78 Pac. 296, 1 L. R. A. n. s. 976, 107 Am. St. Rep. 711, 3 Ann. Cas. 1110.)
The Supreme Court of Utah, in the case of Highland Boy Gold Mining Co. v. Strickley, 28
Utah, 215, 78 Pac. 296, 1 L. R. A. n. s. 976, 107 Am. St. Rep. 711, 3 Ann. Cas. 1110, passed
upon a statute which, in so far as it is material to the case at bar, is identical with the Nevada
statute. The court said:
It being conceded, and this court having held, that the construction and operation of
irrigating ditches in this state is a public use (Nash v. Clark, 27 Utah, 158, 75 Pac. 371, 1 L.
R. A. n. s. 208, 101 Am. St. Rep. 953, 1 Ann. Cas. 300, supra), it follows that the
construction of roads and tramways for the development of the mining industry is a public
use, as the same line of reasoning that applies in support of the doctrine in the one case holds
good in the other. Otherwise a party owning a few acres of farming land, or only a few square
rods for that matter, could invoke the law of eminent domain, and by condemnation
proceedings acquire a right of way across his neighbor's land for an irrigation ditch to convey
water to his small holdings; whereas, the owners of mines and of works for the reduction of
ores, the operations of which furnish thousands of men in this state with employment at good
wages, and to which the general prosperity of the state is largely due, would be denied the
right to invoke this same rule of law in order to acquire, when necessary to the successful
operation of their business, rights of way for the transportation of ores from the mines to
the mills and smelters, and for the construction of tunnels for drainage and other
purposes.

denied the right to invoke this same rule of law in order to acquire, when necessary to the
successful operation of their business, rights of way for the transportation of ores from the
mines to the mills and smelters, and for the construction of tunnels for drainage and other
purposes. And parties holding the title to ground necessary and suitable for these purposes,
which, in many cases, except for such purposes, might be entirely worthless, would be
clothed with power to demand and compel payment of an unconscionable price for their lands
before parting with the title, or they could refuse, absolutely, to grant the easement required
on any terms, and thereby in some cases cripple mining enterprises, or destroy them
altogether. Such a policy would not only be inconsistent and unreasonable, but would greatly
retard the development of one of the greatest natural resources of the state. We are therefore
of the opinion, and so hold, that the construction and operation of roads and tramways for the
development and working of mines is a public use. The act of the legislature under
consideration makes ample provision for the payment of a fair price to the owner for lands
sought to be condemned, and for all damages that he may suffer because of such taking, and
is therefore valid.
That case was taken to the Supreme Court of the United States, by which tribunal the
judgment was affirmed in Strickley v. Highland Boy Gold Mining Co., 200 U. S. 527, 26 Sup.
Ct. 301, 50 L. Ed. 581, 4 Ann. Cas. 1174.
Substantially the same question here involved has been passed upon by this court in two
cases, the opinion in both cases having been written by Mr. Justice Hawley. The question was
so ably discussed by that eminent jurist that it seems to us a bare reference to them should
suffice. (Dayton M. Co. v. Seawell, 11 Nev. 394; Overman S. M. Co. v. Corcoran, 15 Nev.
147.)
See, also, Byrnes v. Douglass, 83 Fed. 45, 27 C. C. A. 399; Lewis on Eminent Domain, 3d
ed. sec. 275, et seq.; Miocene Ditch Co. v.

Miocene Ditch Co. v. Jacobsen, 146 Fed. 680, 77 C. C. A. 106; Butte A. & P. Ry. Co. v.
Mont. U. Ry. Co., 16 Mont. 504, 41 Pac. 233, 31 L. R. A. 298, 50 Am. St. Rep. 508.
It is true that the statute under consideration in the Nevada cases cited has been repealed,
but the logic of those cases is applicable to the statute now in existence in the state.
[4] We now come to the question as to whether or not the surface rights sought to be
condemned are necessary to the carrying on by respondent of its operations. In considering
this question, the lower court found it necessary to determine also the question of the
ownership of the tailings deposited thereon. It appears from the evidence that respondent,
after treating the ores which it had purchased, deposited the tailings upon a portion of its own
land which lies in a gulch, through which water flows at times in great volume and with great
force. It also appears from the evidence that it was necessary for respondent to keep a man
employed at all times to dam up the tailings so that they would not wash away and be lost,
and as a consequence of this damming process the tailings eventually were forced upon the
land of appellants. It also appears that these tailings are valuable and can be re-treated
profitably. Respondent seeks to re-treat these tailings, and to do so finds it necessary to erect
a tram to convey them to its mill. Appellants claim that they are now the owners of the
tailings. Having purchased the ores from which the tailings came, respondent was the owner
of them at the time they were deposited upon the lands of appellants. There are certain
well-known methods of parting with title to property (32 Cyc. 680), and the only way in
which appellants claim that respondent parted with the title to the tailings was by
abandonment. The rule as to what constitutes abandonment has been declared by this court in
Mallett v. Uncle Sam M. Co., 1 Nev. 188, 90 Am. Dec. 484, as follows:
Abandonment' is a word which has acquired a technical meaning, and there can be no
reason why a different signification should be given to it when applied to the loss of right to
a mining claim than that which it has received in the books.

loss of right to a mining claim than that which it has received in the books. It is defined to be
the relinquishment of a right, the giving up of something to which we are entitled.' In
determining whether one has abandoned his property or rights, the intention is the first and
paramount object of inquiry; for there can be no strict abandonment of property without the
intention to do so. Thus differing from the loss of right by forfeiture under mining laws, or by
the failure to use and occupy where no such laws govern , and in this, too, that abandonment
may be complete the very instant the miner leaves his claim, for time is not an essential
element of abandonment. The moment the intention to abandon and the relinquishment of
possession unite, the abandonment is complete. But lapse of time may often be a strong
circumstance, when connected with others, to prove the intention to abandon, though the bare
lapse of time, short of the statute of limitations and unconnected with any other circumstance,
would be no evidence of abandonmentthough the right might be lost, as before stated.
There can be no question but that the foregoing quotation correctly states the law. (1 Cyc.
5; Middle Creek Ditch Co. v. Henry, 15 Mont. 558, 39 Pac. 1058; Ritter v. Lynch, 123 Fed.
936; St. John v. Kidd, 26 Cal. 271; Richardson v. McNulty, 24 Cal. 345; Judson v. Malloy, 40
Cal. 309; Barnett v. Dickinson, 93 Md. 258, 48 Atl. 840; Worsham v. State, 56 Tex. Cr. R.
253, 120 S. W. 443, 18 Ann. Cas. 134; Hawke v. Wentworth, 4 Ariz. 317, 39 Pac. 809.)
The trial court, in its written decision, after declaring the law to be as above stated, found
that there had been no abandonment. Before respondent began to deposit its tailings upon the
ground of appellants, it sought legal advice, and made the deposit accordingly. It conserved
the tailings by having a man on hand to keep a dam built up so as to prevent their being
washed away, which it is not likely it would have done had it intended abandoning them. The
testimony was to the effect that respondent did not intend to abandon the tailings.

respondent did not intend to abandon the tailings. We think the conclusion of the trial court,
to the effect that respondent did not abandon the tailings, is warranted by the evidence.
[5] Being, then, the owner of the tailings, has not respondent a right to condemn the land
in question for the purpose of erecting its tram thereon to reconvey them to its mill?
Where a corporation invested with the power of eminent domain enters upon land
without the consent of the owner, express or implied, and places improvements thereon, and
subsequently institutes proceedings to condemn the same land, the common-law rule that a
structure erected by a tort-feasor becomes a part of the land does not apply, and the owner is
not entitled to the value of the improvements thus wrongfully erected. (15 Cyc. 763.)
See, also, Oregon Ry. & N. Co. v. Moiser, 14 Or. 519, 13 Pac. 300, 58 Am. Rep. 321; 5
Am. & Eng. Ency. 567; Searl v. School Dist. No. 2, 133 U. S. 553, 10 Sup. Ct. 374, 33 L. Ed.
740; Chase v. School Dist. No. 10, 8 Utah, 231, 30 Pac. 757, 16 L. R. A. 805; Cal. P. R. R.
Co. v. Armstrong, 46 Cal. 85; International Bridge & T. Co. v. McLane, 8 Tex. Civ. App.
665, 28 S. W. 455; Seattle & M. R. Co. v. Corbett, 22 Wash. 189, 60 Pac. 127; Calumet River
Ry. Co. v. Brown, 136 Ill. 322, 26 N. E. 501, 12 L. R. A. 84; Illinois Cent. R. Co. v. Le Blanc,
74 Miss. 650, 21 South. 760; Bellingham Bay & B. C. R. Co. v. Strand, 14 Wash. 144, 44
Pac. 140, 46 Pac. 238; Greve, et al., v. First Div. St. P. & P. R. Co., 26 Minn. 66, 1 N. W.
819; Newgass v. St. Louis, A. & T. R. Co., 54 Ark. 140,15 S. W. 188; Jacksonville T. & K. W.
Ry. Co. v. Adams, 28 Fla. 631, 10 South. 465, 14 L. R. A. 533; Denver & R. G. Ry. Co. v.
Stancliff, 4 Utah, 177, 7 Pac. 530.
Does not this rule apply to the situation under consideration? Our Statute (Rev. Laws, sec.
5606) expressly declares that the right of eminent domain may be exercised in behalf of
certain public uses, and among them "dumping places to facilitate the milling * * * of
ores * * *" and "for the deposit or conduct of tailings."

dumping places to facilitate the milling * * * of ores * * * and for the deposit or conduct
of tailings. Taking the view we do, that the use to which it is sought to apply the land is one
authorized by law, and that respondent is invested with the power of eminent domain, it
logically follows that the rule laid down by Cyc. is controlling in this case.
[6] The witness Burch, who was called in behalf of respondent, testified that respondent
owned about as much land below the level of its retaining dam as was then covered by its
tailings, but that it needed that land for the deposit of the tailings now upon the ground after
they are re-treated. And while this witness also testified that respondent owned 300 or 400
acres of land in the vicinity of the place where the tailings now are, and upon which no
tailings are deposited, he also testified: We have covered practically all (the land) that is
available for tailings, and that the land alluded to (the 300 or 400 acres) was too high to run
the tailings upon. Aside from Mr. Burch, respondent called another witness, who was a mill
man of years of practical experience and technical training, and both of these witnesses gave
their expert opinion that the ground sought to be condemned was necessary to the carrying on
of the operations of the mill by the respondents, opposed to whom was a witness who had had
no such technical or practical experience.
[7] The rule as to what is necessary in condemnation proceedings was clearly stated by
this court in the case of Overman S. M. Co. v. Corcoran, 15 Nev. 147, where it is said:
Individuals, by securing a title to the barren lands adjacent to the mines, mills, or works,
have it within their power, by unreasonably refusing to part with their lands for a just and fair
compensation, which capital is always willing to give without litigation, to greatly embarrass,
if not entirely defeat, the business of mining in such localities, and confirms the opinion there
advanced that 'the mineral wealth of this state ought not to be left undeveloped for the
want of any quantity of land actually necessary to enable the owner or owners of mines to
conduct and carry on the business of mining.' The law does not contemplate that an
'absolute necessity' should exist for the identical lands sought to be condemned.

that the mineral wealth of this state ought not to be left undeveloped for the want of any
quantity of land actually necessary to enable the owner or owners of mines to conduct and
carry on the business of mining.' The law does not contemplate that an absolute necessity'
should exist for the identical lands sought to be condemned. The selection of any site for the
purposes specified must necessarily, to some extent, be arbitrary. * * * Upon a review of all
the facts, it appears to our satisfaction that the appropriation of these lands to respondent's use
will be of great benefit and advantage to the mining industry of Storey County; that it is
necessary to condemn such lands for the protection and advancement of said interests; and
that the benefits arising therefrom are of paramount importance as compared with the
individual loss or inconvenience to appellants. This brings the case within the provisions of
the statute, and shows that a necessity exists for the exercise of the law of eminent domain.
This rule is sustained by the great weight of authority: 15 Cyc. 633; State v. Superior
Court, 44 Wash. 476, 87 Pac. 521; State v. Superior Court, 46 Wash. 516, 90 Pac. 663;
Spring Valley Co. v. Drinkhouse, 92 Cal. 528, 28 Pac. 682; Butte Ry. Co. v. Mont. U. Ry. Co.,
16 Mont. 504, 41 Pac. 233, 31 L. R. A. 298, 50 Am. St. Rep. 508; Samish River Boom Co. v.
Union Boom Co., 32 Wash. 586, 73 Pac. 670; K. C. Ry. Co. v. Vicksburg Ry. Co., 49 La. Ann.
29, 21 South. 144, affirmed in Louisiana & A. Ry. Co. v. Louisiana Ry. & Nav. Co., 125 La.
756, 51 South. 712; State v. Superior Court, 64 Wash. 189, 116 Pac. 855.
It is intimated that since the tailings now upon the ground are only about ten feet deep, and
since the outlet of the mill is sixty feet higher than the ground of the respondent which is
covered by the tailings, there is no need for additional ground, as the tailings to be produced
in the future can be deposited upon these tailings now upon the ground. Mr. Burch, the man
of technical training and experience, testified that it would be easier mechanically to handle
the tailings if not spread out so much, but that when spread out and exposed to the oxygen
of the air for a time they could be re-treated to greater advantage.

much, but that when spread out and exposed to the oxygen of the air for a time they could be
re-treated to greater advantage. But, aside from the advantage of having the tailings at no
greater depth than ten feet, the uncontradicted testimony is to the effect that the uniform grade
from the mill to the furtherest end of the dam is about one-third of an inch to the foot, so it
will be seen that it is not practicable to deposit the tailings much deeper.
[8] The contention that the land cannot be condemned because there are other lands farther
away that are available for the purpose sought is of no force, as was shown in the case of
Overman S. M. Co. v. Corcoran, supra, where it is said:
In the matter of the petition of the N. Y. & H. R. R. Co., the court, in discussing this
question, said: It is claimed that there are other lands in the vicinity, equally well adapted to
the use of the applicant as those sought to be acquired by these proceedings, and which,
possibly, might be acquired by purchase from the owners. But such objections to these
proceedings are untenable. The location of the buildings of the company is within the
discretion of the managers, and courts cannot supervise it. The legislature has committed to
the discretion of the corporation the selection of lands for its uses, and if the necessity of
lands for such purposes is shown, and the lands sought are suitable, the courts cannot control
the exercise of the discretion, or direct which of the several plats of ground shall be taken. If
the taking of one plat of ground in preference to another could be shown to work great
mischief, and result in great loss, which could be prevented by taking another, and the
proceeding to take one parcel compulsorily, in preference to another equally well adapted to
the uses of the company, is from some unworthy or malicious motive, and not in the interest
of the public, the court might entertain the question, and in the exercise of a sound discretion
withhold its consent to the appropriation. But in this case there are good reasons, resulting
from the present occupation of and the expensive improvements put upon these premises
by the appellant, why they should be taken if suitable and proper for the purposes
required, the owners not claiming that they will sustain any special injury peculiar to
themselves, which would not be sustained by the owners of adjacent lands, if taken.' {46
N. Y. 553.)

occupation of and the expensive improvements put upon these premises by the appellant, why
they should be taken if suitable and proper for the purposes required, the owners not claiming
that they will sustain any special injury peculiar to themselves, which would not be sustained
by the owners of adjacent lands, if taken.' (46 N. Y. 553.) To the same effect, see Boston &
Albany R. R. Co., 53 N. Y. 576.
It is the general rule that, when a corporation seeks to exercise the right of eminent
domain, its discretion in the selection of land for its use will not be questioned where it acts
in good faith and not capriciously. (15 Cyc. 634; 10 Am. & Eng. Ency. Law, 2d ed. p. 1057,
citing cases; Postal Tel. & T. Co. v. Oregon S. L. R. Co., 23 Utah, 474, 65 Pac. 739, 90 Am.
St. Rep. 705; Samish River Boom Co. v. Union Boom Co., supra; Frick Coke Co. v. Painter,
198 Pa. 468, 48 Atl. 302.)
If such were not the rule, the same defense could be made with regard to any lands
plaintiff might seek to condemn. We are clearly of the opinion that a necessity was shown by
respondent for the condemnation of the land.
[9] It is also contended that the property sought to be condemned was devoted to a public
use (mining), and therefore could not be taken by another for the same or a kindred use. The
evidence shows that, while the property was located and patented as mining ground, it was
not in fact being worked, and had not been worked for several years. The mere possibility that
the land may some time in the future be used by appellants for mining purposes will not
prevent condemnation. (Byrnes v. Douglass, 83 Fed. 45, 27 C. C. A. 401; Balto. & O. Ry. v.
P. W. & Ky. R. Co., 17 W. Va. 847; Samish River Boom Co. v. Union Boom Co., 32 Wash.
586, 73 Pac. 673; Butte R. Co. v. Mont. U. R. Co., 16 Mont. 504, 41 Pac. 245, 31 L. R. A.
298, 50 Am. St. Rep. 508; Colo. E. R. Co. v. U. P. R. R. Co., 41 Fed. 301; So. Pac. R. Co. v.
So. Cal. R. Co., 111 Cal. 221, 43 Pac. 604.)
See, also, St. L., H. & K. Ry. Co. v. Hannibal U. D. Co., 125 Mo. 82, 28 S. W. 483.

While the fee to land may be acquired in certain cases under condemnation proceedings,
the respondent does not seek in this case more than the privilege of occupying the surface of
the land to such an extent only as is necessary to the carrying on of its operations, and is
willing that appellants may use the surface for the carrying on of mining operations, in so far
as such use does not interfere with respondent's operations; and since it is the purpose of
respondent not to restrain the tailings after they shall have been re-treated, but to permit them
to be carried away by the flood waters which come from time to time, it is very likely that
before a great while a large portion of the land sought to be condemned will be free from
tailings.
[10] Section 5607, Revised Laws, relating to the estate which may be taken, is as follows:
The following is a classification of the estates and rights in lands subject to be taken for
public use: (1) A fee simple. * * *
It does not say that a fee simple shall be taken, but that it is subject to be taken. Under
such statutes, only such an interest as is necessary can be taken. (Lewis on Eminent Domain,
3d ed. sec. 450; Newton v. City of Newton, 188 Mass. 226, 74 N. E. 346; Neitzel v. Spokane I.
Ry. Co., 65 Wash. 100, 117 Pac. 864, 36 L. R. A. n. s. 522; Tyler v. Town of Hudson, 147
Mass. 609, 18 N. E. 582; Kellogg v. Malin, 50 Mo. 496, 11 Am. Rep. 426; Heyneman v.
Blake, 19 Cal. 595.)
[11] It is contended that appellants were entitled to a jury upon the question of ownership
of the tailings. The determination of the ownership of the tailings was an incident of the
determination of the right of condemnation, which was a question solely for the court.
From the views expressed, it necessarily follows that the judgment appealed from should
be affirmed, and it is so ordered.
McCarran, J.: I concur in the order.
____________
38 Nev. 448, 448 (1915) State v. Fronhofer
[No. 2071]
STATE OF NEVADA, Respondent, v. GEORGE
FRONHOFER, Appellant.
[150 Pac. 846]
1. Criminal LawActs of ConspiratorsPreliminary Evidence.
In a prosecution for murder, evidence held insufficient to establish prima facie a conspiracy between
defendant and others so as to render admissible evidence of the acts of such others.
2. Criminal LawActs of ConspiratorsPreliminary Evidence.
A conspiracy may be established by circumstantial evidence, but the circumstances must be such that
there can be no other reasonable hypothesis but that of guilt.
3. HomicideEvidenceProsecutionSufficiency.
Deceased was shot by a man nearly 200 feet away, and the witness who was with him jumped and ran to
cover. The only evidence that accused was the guilty person was an identification by the witness of a hat
which the murderer was wearing. Held, that such evidence was insufficient to support a conviction.
4. Criminal LawTrialArgument of CounselInstructions.
In his opening statement the prosecutor charged as a fact that deceased made a dying declaration in which
he identified accused as his assailant. The declaration was excluded, and the court charged the jury that
they should not attempt to consider evidence rejected as inadmissible. Held, that the error in the statement
was not cured by the instruction.
5. Criminal LawEvidenceAdmissibility.
In a prosecution for murder, deceased's companion could not relate a conversation with deceased shortly
before the killing, wherein he assumed that accused had made an earlier attack.
6. Criminal LawAppealReversal.
Where a crime was plainly committed, and on another trial evidence showing accused's guilt might be
introduced, accused will not on reversal for insufficiency of the evidence be discharged.
Appeal from Sixth Judicial District Court, Humboldt County; Edward A. Ducker, Judge.
George Fronhofer was convicted of murder in the first degree, and he appeals. Reversed
and remanded.
B. F. Curler and Salter & Robins, for Appellant:
A foundation sufficient to establish prima facie a conspiracy must be laid before the acts
and declarations of alleged coconspirators can be admitted in evidence, and such acts and
declarations must be those only which were done and made in furtherance of the alleged
conspiracy.
which were done and made in furtherance of the alleged conspiracy. (Greenleaf, Ev. 16th
ed. vol. 1, sec. 184; Metcalf v. Connor, 12 Am. Dec. 340; Osmun v. Winters, 46 Pac. 780;
Holden v. State, 18 Tex. App. 106; Kelley v. People, 55 N. Y. 565; Brown v. U. S., 37 L. Ed.
1010; State v. Tice, 48 Pac. 357; State v. Moore, 48 Pac. 468; State v. Ah Tom, 8 Nev. 213;
State v. Soule, 14 Nev. 453; State v. McLane, 15 Nev. 361.)
Before the acts and declarations of an alleged conspirator are admissible, the fact that a
conspiracy existed must be shown aliunde. (Am. & Eng. Ency. Law, vol. 6, p. 868, and cases
under note 2.)
Testimony must be confined to the acts and declarations of the alleged coconspirators
during the pendency of the alleged criminal enterprise. (Brown v. U. S., 37 L. Ed. 1010;
Logan v. U. S., 144 U. S. 263, 36 L. Ed. 429.)
The conduct of the attorneys for the state, particularly in the opening statement, prejudiced
the jury against the defendant and deprived him of a fair trial. (State v. Scott, 37 Nev. 412;
People v. Montague, 71 Mich. 447, 39 N. W. 585; Scott v. State, 110 Ala. 48, 20 South. 468;
Heller v. People, 22 Colo. 11, 43 Pac. 124; State v. Gutekunst, 24 Kan. 252; Berry v. State,
10 Ga. 751; Martin v. State, 63 Miss. 505.)
Geo. B. Thatcher, Attorney-General, for Respondent:
Acts and declarations of one coconspirator, not made in the presence of the defendant, are
admissible to show motive for a conspiracy. (6th Dec. Dig., sec. 422, subd. 4.) Evidence is
admissible if it leads to the conclusion that a conspiracy in fact existed. (State v. Ryan, 82
Pac. 703, 705; People v. Bentley, 17 Pac. 436; People v. Childs, 59 Pac. 768.) There was
sufficient evidence to establish the alleged conspiracy. (People v. Ferenbach, 36 Pac. 678;
State v. Vertrees, 34 Nev. 509; Wharton, Ev. sec. 1205; Star v. State, 115 Pa. 364; People v.
Childs, 127 Cal. 363, 59 Pac. 768; Spyes v. People, 122 Ill. 1; State v. Cassedy, 115 Pac. 287,
294; 12 Cyc. 438; State v. Ward, 19 Nev. 297; Muller v. Dayton, 10 N. W. 816; State v.
Dilley, 87 Pac. 133, 136.) By the Court, Norcross, C. J.:
George Fronhofer was convicted of murder in the first degree in the Sixth Judicial District
Court in and for Humboldt County.
George Fronhofer was convicted of murder in the first degree in the Sixth Judicial District
Court in and for Humboldt County. From the judgment and from an order denying a motion
for a new trial, he appeals.
Peter Laux was shot on the 23d day of January, 1912, near the mining camp of Kennedy,
in Humboldt County, and on the 13th day of February following he died from the effects of
his wounds. It was the theory of the state that the shooting was in pursuance of a conspiracy
upon the part of the defendant and certain other residents of Kennedy. The only eye-witness
to the shooting, other than the participants, was one B. H. Labigan. The witness Labigan
testified that on the day of the shooting the deceased and himself had gone out from the town
of Kennedy to work upon their mining locations. They arrived at the place where they
intended to work about 10:30 a. m., and worked there until after 1 o'clock. While at work they
heard the report of two shots. The witness said to the deceased: Pete, they don't intend to let
us work here; what is the use of getting hurt for all the mines in the country? Let us go
down. The deceased replied: All right; I will blow out these two holes anyhow, and then we
will go down. After the blasts were set off Labigan and the deceased walked to the top of the
ridge where their lunch and a shotgun carried by Labigan had been left. The deceased took
some of the lunch and sat down to eat it. Labigan was stooping to sit down with his back
towards the deceased when a shot rang out close to them.
The sound appeared to come from the eastward and back of Labigan. The deceased stood
up and said, What is that? Labigan immediately turned around, heard the report of a second
shot, and, just as he looked to where the shots seemed to come from, Laux fell forward on his
left side and face. Labigan looked at him for an instant, and then jumped behind a tree where
he had placed the lunch-bag, containing shells, and his gun. He picked up the bag in one hand
and the gun in the other, and, noticing a cliff of rocks near him, jumped behind the rocks.
other, and, noticing a cliff of rocks near him, jumped behind the rocks. As he jumped from
the tree to the cliff of rocks, he looked up towards another cliff of rocks, 162 feet from the
place where Laux was shot, and saw a man behind the rocks. Quoting from the witness's
direct examination, relative to his observations at this point, the following appears:
As I jumped from the tree across to the rocks I looked up and I saw the man that I
supposed done the shooting. I saw him from about here (indicating his breast), and he was
dodging down kind of to the leftward, and down like that; that was the position of it as I saw
him as he was going across, and I saw that he had on a black hat; was not very regular, the
crown did not stay up, and it had a peculiar look; that hat particularly was impressed on my
mind, and I thought the man looked like Jake Leick; he had much the same features, and Jake
Leick was the man I thought did the shooting. * * *
After crouching for a few seconds behind the cliff of rocks where he had taken shelter,
Labigan started to run towards the southeastwards, keeping the cliff of rocks behind which he
had taken shelter between him and the cliff of rocks behind which he had seen the man
assumed to be the person who did the shooting. The witness testified that he determined to go
to a farmhouse some miles away, fearing to go immediately to the town of Kennedy; that he
thereafter became lost in the hills, but subsequently reached the ranch of John Guthrie, about
four hours after the shooting. Immediately upon his arrival at the Guthrie ranch, he said: Pete
has been shot in a cowardly manner, and I think it is Jake Leick that did it.
Asked to describe the man he saw behind the cliff of rocks, he said: The man appeared to
me to look like Jake Leick, German features, kind of sandy, a light mustache, and a black
hat.
Relative to a hat introduced in evidence, which was shown to have been a hat belonging to
Jake Leick, but worn on the day of the shooting by the defendant, the following appears from
the direct examination of the witness Labigan:
following appears from the direct examination of the witness Labigan:
Q. I will show you this object and ask you, Mr. Labigan, if you have ever seen it before?
A. That
Q. Just answer the question Yes' or No.' A. Yes, sir.
Q. Now, when and where? A. I saw that at the time I jumped across from the tree that No.
1' to No. 3.'
Q. Where did you see it at that time? A. When I looked up here at the man that stood
there.
Q. Well, now what man was it that stood there? A. The man who did the shooting, I
believe, that I saw that day at that time.
Q. About how far was it do you say up to where the man stood; state your best
information? A. About 150 feet.
Q. And that is the hat you say you saw him have on? A. Yes, sir.
Q. When did you next see that hat after seeing it that day? A. I believe at the preliminary;
yes, it was at the preliminary in Judge Dunn's court.
Q. As you were looking up at this man that fired the shots, was there anything peculiar
about the hat that directed your attention to it? A. Yes, sir.
Q. What, if anything? A. Well, the top was not sticking out like that; it was not a round
top; it is in my mind; I will not make no mistake in it; it was not a round top like that; this top
was all built down, and the rim was sagged like in places, and it appeared not to be even, but
uneven, in its looks.
Q. Which appeared to be uneventhe whole hat rim? A. The whole hat; it was not with
the rim straight out like that; the rim did not stick out like that, or, like many a hat
(indicating), the rim was not turned up all around, but some parts of that brim appeared to be
sagging, and this top was not sticking out; it was square, and it looked like as though it was
cut off more on the top. It had the peculiar look. * * *
Relative to the impression gained by the witness of the man seen by him in the cliff of
rocks, the following appears in his testimony:
the man seen by him in the cliff of rocks, the following appears in his testimony:
Q. When did you first change this impression that you had that Jake Leick was the man
up in the rocks? A. I began to think in Guthrie's house when I got calmer, and concluded I
could not swear positively that Jake was the man because I had not seen him plain enough.
The witness John F. Guthrie, to whose ranch the witness Labigan went immediately after
the shooting, testified that when Labigan first arrived he said: Jake Leick has killed Peter
Laux. Later, after supper, the witness asked Labigan if he was sure it was Jake Leick and he
(Labigan) said he would not swear it was Jake Leick, but he could almost swear to it,
although the hat was almost like the hat that Jake Leick wore.
During the night of January 23, following the shooting, Peter Laux was found near the spot
where he fell, as testified to by the witness Labigan, by a posse made up of parties from the
Guthrie ranch and from Kennedy. When found he was partially conscious. He had moved
several feet from the place where he fell when shot. When found, lying loosely upon his
breast, a little to one side, was a pistol belonging to Labigan with every chamber loaded.
Charles W. Muller, deputy sheriff of Humboldt County, and a witness for the state,
testified in reference to the hat referred to in the testimony of Labigan as follows:
Q. Did you say anything to the defendant as to what kind of a hat he wore on the day of
the shooting? A. Yes, sir.
Q. What did you say to him? A. I asked him if he was wearing the same hat yesterday that
he was wearing at that time.
Q. What kind of a hat was that? A. He was wearing a white hat.
Q. What did he say? A. He said he was wearing an old black hat of Jake's yesterday.
Q. Did you ask him to find the hat for you? A. Yes, sir.
Q. And what was the result? A. I went up to the house with him to Jake's house, and we
searched the house thoroughly for the hat, and could not find it anywhere. He said he did not
know just what became of it; that he left it there in the house that night when he came down
from work. I told him to continue to look for the hat; that I would like to get and bring it in.
He said that he would. The next morning when I came he told me he had found the hat, and I
went up to the house with him to get it, and got it.
The foregoing is the gist of the testimony against the defendant otherwise than that offered
in support of the alleged conspiracy.
[1-2] The court required the district attorney to make a statement in the absence of the jury
of what he expected to prove to establish prima facie a conspiracy upon the part of defendant
and others. The overruling of an objection to the proposed evidence is one of the principal
errors assigned.
The offer was substantially to show the following facts: That the Gold Note Mining and
Milling Company was a corporation theretofore owning certain mining claims near Kennedy;
that one Klopstock was president of the company, and A. E. Lasher its secretary; that these
men were promoting the company and had had Peter Laux employed upon the property until
about January 1, 1912; that at that time the company was indebted to him and that, by reason
of that fact and the further fact that the company had not done its assessment work for the
year 1912, Laux and Labigan put up a relocation notice on some of the company's mining
property; that Lasher had a conversation with Labigan to the effect that, while he was
connected with Klopstock financially in the promotion of the property, he was at liberty to
withdraw from it and go into it with Laux; that conversations occurred between Labigan and
Klopstock in which Klopstock exhibited a very hostile manner towards Labigan and Laux;
that a quarrel ensued in which hot words passed between Klopstock and Labigan; that a
notice was found on the ground located by Labigan and Laux signed by Klopstock, and
reading as follows:
Laux; that a quarrel ensued in which hot words passed between Klopstock and Labigan; that a
notice was found on the ground located by Labigan and Laux signed by Klopstock, and
reading as follows:
Paul Klopstock, President and Manager.
Henry Bredhoff, Vice-President.
H. W. Mathews, Secretary.
A. E. Lasher, Treasurer.
Executive Office of the Gold Note Mining & Milling Company.
Mines and Mill at Kennedy, Nev.
Kennedy, Nev., January 2, 191.
To Peter Laux, Albert Kattenhorn, B. H. Labigan, and
All Others to Whom This May Concern:
You and each of you are hereby notified to keep off from the Gold Note group of mines,
or any of the claims belonging to said group. You are also hereby notified that any trespassing
on said property will be dealt with in accordance with law.
The undersigned is the owner and operator of said Gold Note group of mines, in the
Kenndy Mining District, Humboldt County, State of Nevada.
Gold Note Mining & Milling Company,
By Paul Klopstock, President.
That the defendant was employed by the Gold Note Mining Company as watchman upon
the property, and while so employed occupied a cabin upon the property; that about two
weeks prior to the shooting of Laux, Laux and Labigan were working upon the property
located by them, when they heard two shots; that after hearing the shots Laux and Labigan
went down to the cabin of defendant and asked defendant if he had heard the shots, to which
defendant replied No, and then stated that he did not have a gun; that the next day Laux and
Labigan went over to defendant's cabin, and Laux accused defendant of being hired there to
keep him off the ground; that defendant in reply stated that he was there as a watchman, and
that he was going to stay there; that considerable other words passed back and forth, and
they finally quit, and the argument subsided; that neither Lasher, Leick, nor the defendant
went to see Laux after the shooting, nor offered any assistance in caring for him in the
little town of Kennedy, which did not at that time contain more than a dozen people; that
on the evening of the shooting Mrs.
stay there; that considerable other words passed back and forth, and they finally quit, and the
argument subsided; that neither Lasher, Leick, nor the defendant went to see Laux after the
shooting, nor offered any assistance in caring for him in the little town of Kennedy, which did
not at that time contain more than a dozen people; that on the evening of the shooting Mrs.
Laux came to the door of Mr. Lasher's cabin and asked Lasher to go up on the hill and assist
her in finding her husband; that at that time Lasher said her husband would be down in a
short time; that he had heard Labigan and Laux talking about working nights; that Labigan
and Laux had had no such conversation; that when Mrs. Laux came to the door, Lasher sent
his boy out the back door with a rifle; that Lasher was at first afraid to step out the door when
requested so to do by Mrs. Laux, and evaded her request to go up on the hill and look for her
husband, and sent her home; that Jake Leick and the defendant were requested in the same
way by Mrs. Laux on the evening after the shooting to go up on the hill and help her look for
her husband, and they spoke something about his working nights when there was nothing of
the sort ever contemplated so far as the witness Labigan or Mrs. Laux knew; that they evaded
her, did not offer her any assistance to go look for Mr. Laux on the hill; that on that evening
the defendant was staying at Jake Leick's place; that he was lame; that he received or claimed
to have received a wound that day; that on the same evening Marvin Kennedy went to Jake
Leick's place and requested Leick and defendant to go and assist; that Mrs. Laux was looking
for her husband; that defendant went down to see Mr. Lasher; that the officers of the Gold
Note Mining Company lived at Mr. Lasher's house.
There was some testimony offered in support of most of the offer of proof made by the
district attorney, but some of the evidence in support of the offer is worthy of brief comment.
Relative to the testimony of Labigan, to the effect that he and the deceased heard two shots
fired about two weeks before," there is nothing in the testimony warranting an inference
that these shots were fired at the deceased and the witness, or for the purpose of
frightening them.
about two weeks before, there is nothing in the testimony warranting an inference that these
shots were fired at the deceased and the witness, or for the purpose of frightening them. True,
the testimony is that after hearing the shots they quit work, and went to defendant's cabin and
asked defendant who fired the shots, and defendant said: I don't know; I ain't got no gun.
Upon this visit to defendant's cabin the witness showed defendant some sort of a written
notice not to interfere with witness and deceased, to which defendant replied: I don't know
anything about that; I won't get off this ground until I receive an order from the court.
Reference was made by Labigan to a mining engineer who had visited the property, and the
defendant replied that the engineer had said: Let the boys come up on the ground as long as
they don't go in the mines.
The next day the witness Labigan and the deceased called at defendant's cabin. Defendant
invited them to dinner. Labigan accepted. Deceased sat down, but did not eat. Witness
Labigan testified to the conversation which ensued as follows:
Pete,' he says, what are you up here for? And Fronhofer replied, I am living up here.'
And he says, Pete says, As long as you are up here,' he says, you are keeping that company
from paying me my money'; and he says, You ain't got no business up here'; he says, there
ain't nobody in Kennedy would come up here but you'; and Fronhofer, he replied, I don't give
a damn,' he says, I am here, and I am going to stay here.' And Pete replied, he said, Well, of
course,' he says, you don't give a damn,' he says, for me and my family,' he says: That this
company owes me $100,' and he says, You will stay here and keep me out of it for your
lousy wages.' And they were getting quite angry, and Fronhofer replied, and he says, I am
here, and I don't give a damn for you or nobody else, and I am going to stay here, and I would
like to see somebody put me off.' And they were getting pretty angry, and I stepped in
between and said, Oh, well, Pete,' says I, what is the difference if the man is here?
here? Let him stay here; as long as we can go ahead without interference and work without
interference, it is all right. Come ahead; let us go down to the cabin.'
Relative to the circumstances that neither Lasher, Leick, nor the defendant, went to see
Laux after the shooting, it appears from the testimony that a number of other residents of
Kennedy, not alleged to be in the conspiracy, did not go to see Laux. It does appear, however,
that Mrs. Lasher did go to the house of Laux, and was with Mrs. Laux the morning her
husband was removed to Winnemucca.
Relative to the fact that neither the defendant nor Jake Leick volunteered to go with Mrs.
Laux to look for her husband, when she called at Leick's house early in the evening of the day
of the killing and appeared anxious about her husband, the following appears in the testimony
of Marvin Kennedy, who also called at Leick's house relative to the same matter:
I said that some of us had better go and see what had happened. They said they probably
had gone up to work at night so they could get their work done. * * * They said I had better
go up with her if she was going up; that Pete was not sore at me or anything.
Further upon the same subject we quote from the testimony of this witness the following:
Q. When you went up to Leick's and asked Leick or some of those persons sitting there
something about going up on the hill, did you not know at that time that Leick and Laux had
had trouble and were deadly enemies? A. Yes, sir.
Q. And did you not know the same thing with reference to Stone and Laux? A. Yes, sir.
Q. And did you not know the same thing with reference to Miller and Laux? A. Yes, sir.
Q. And in spite of that you went up and asked those persons to go up? A. Yes, sir; they
were the only persons in town that could go.
Mrs. Ella Laux, widow of the deceased, testified for the state that she knew there was ill
feeling between Mr.
Mr. Laux and Mr. Klopstock, and Mr. Lasher, growing out of the location made by Laux and
Labigan; that there was very hard feeling between Laux and Leick, which was not due to the
location on the Gold Note property; that in the evening of the day of the shooting she called at
Leick's house and said to Leick:
Mr. Leick, have you seen anything of Peter?' and he says, No; Charlie George said he
saw Mr. Labigan going down the hill.' At the same time Mr. Fronhofer * * * said, I saw Mr.
Labigan going down the hill.'
The following question and answer appear in the testimony of this witness:
Q. Did you observe anything peculiar as to the appearance of Mr. LeickJake Leick? A.
Yes, sir; he did not look natural to me, and he did not look like he always looked. He looked
awful pale, and the other man, too; nary one seemed right, and they did not act right to me.
Relative to a conversation had the same evening with Mr. Lasher, the witness testified that
Lasher said: Well, I heard they were going to work nights. She further testified that she said
to Mr. Lasher, I am going up to the mine and hunt them, and I would like for you to come
along, and that Lasher made no reply, but turned and walked into the house and shut the
door.
Some other circumstances offered as evidence of a conspiracy, which counsel for the state
has considered of sufficient importance to refer to in the brief, are, quoting from the brief, the
following:
Klopstock was not present on the 23d, * * * he having gone on the stage a day or so
before, but the night before he left he was seen in conversation with Jake Leick in front of the
latter's cabin.
Leick had a claim near the Gold Note property, and on the day of the shooting he went
over there and did about two hours' work, which was the first work he had come there for
several months.
As they [the posse coming from the ranch going to look for Peter Laux] passed the place
where Jake Leick lived, their horses were making considerable noise on the frozen ground,
and the lights went out in Jake Leick's house.
lived, their horses were making considerable noise on the frozen ground, and the lights went
out in Jake Leick's house. (This was about 9:30 in the evening.)
On the day after the shooting, Deputy Sheriff Muller * * * talked with A. B. Lasher, who
appeared to be nervous. Lasher sought to get Mr. Muller's opinion, and asked him if he did
not think Laux and Labigan quarreled, and that Labigan did the shooting.
Mr. Muller testified that right after the defendant made his statement at the Kennedy
postoffice on the second day after the shooting he (Mr. Muller) went directly down to Mr.
Lasher's place for Mr. Lasher to come up, and he found the defendant and Mr. Lasher talking
outside the house and on the east side thereof.
From the various circumstances detailed, and possibly some others of a minor character,
not necessary to refer to, we are asked to hold that there was sufficient proof to establish the
alleged conspiracy.
Assuming, without deciding, that the testimony relative to circumstances following the
shooting was admissible, providing there had been some other testimony from which a
conspiracy might have been inferred, nevertheless there is not a single circumstance detailed
that is not consistent with the innocence of the defendant, and all the circumstances combined
are not sufficient to support any probable hypothesis of guilt consistent, beyond a reasonable
doubt, with the facts of the case. That a conspiracy may be established by circumstantial
evidence may be conceded (Wharton's Criminal Evidence, 10th ed. sec. 888), but, where
circumstances alone are relied upon, if there be no probable hypothesis of guilt consistent,
beyond a reasonable doubt, with the facts of the case, the defendant must be acquitted.
(Wharton, supra, sec. 10.)
The author cites, in support of the text, Beavers v. State, 58 Ind. 530, 537, in which the
court, considering the particular circumstances of that case, says:
We can conceive of no hypothesis, by which, in the order of natural causes and effects,
the facts proved can be explained consistently with the innocence of the prisoner; and
this is the true test of circumstantial evidence.
order of natural causes and effects, the facts proved can be explained consistently with the
innocence of the prisoner; and this is the true test of circumstantial evidence. It excludes all
reasonable doubt of the prisoner's guilt.
See, also, Ex Parte Jefferies, 41 L. R. A. n. s. (Okl. Crim. Rep.) 749, and note, 124 Pac.
924; Black v. State, 112 Ga. 29, 37 S. E. 108.
This court, in State v. Mandich, 24 Nev. 336, 343, by Bonnifield, J., said:
If the circumstances, all taken together, exclude to a moral certainty every hypothesis but
the single one of guilt, and establish that one beyond a reasonable doubt, they are sufficient.
See, also, State v. Thompson, 31 Nev. 209, 220.
The evidence in support of the alleged conspiracy and that against appellant otherwise is
entirely circumstantial. It is the contention of counsel for appellant that the court erred in
overruling defendant's objection to the offer of proof in support of a conspiracy, and in
denying, upon the conclusion of the state's case, a motion to strike the testimony introduced
to establish such alleged conspiracy. It is contended that there is no sufficient evidence to
support the alleged conspiracy, or otherwise to support the conviction.
Let us consider briefly the circumstances upon which the alleged conspiracy rests. It
appears that about a year or more prior to the killing the Gold Note Mining Company, a
corporation, acquired certain mining locations at Kennedy. Klopstock was president and
Lasher secretary or treasurer of this company. Prior to January 1, 1912, the deceased had been
employed as a miner and the company was indebted to him in the sum of about $100. On the
1st of January, 1912, the deceased and Labigan located or attempted to relocate a portion of
the mining ground held by the Gold Note Mining Company. This caused ill feeling between
the officers of the corporation, particularly Klopstock and the deceased and Labigan.
Klopstock had warned the deceased and Labigan not to interfere with the property, and had
placed upon the property a written notice to the effect that if they trespassed upon the
property they would be dealt with in accordance with the law. Klopstock and the deceased
had had at least two serious quarrels over the indebtedness of the company to the deceased for
the latter's work on the property. No other circumstance connects Klopstock with the alleged
conspiracy except the trifling circumstance that the night before he left Kennedy he was seen
in conversation with Jake Leick in front of the latter's cabin. Lasher's connection with the
conspiracy, in addition to the fact that he was an officer of the Gold Note Mining Company,
appears to rest upon the fact that he was seen going to the mining property the morning of the
day of the shooting; that his son owned a 22-caliber rifle and went out the back door of the
house with it when Mrs. Laux called at his house about 6:30 o'clock of the evening of the day
of the shooting; that he stated that he had heard that the deceased and Labigan were going to
work nights; that he did not volunteer to go with Mrs. Laux to look for her husband; that he
did not call at Laux's house to inquire about the condition of Laux after he was brought to
Kennedy; that he seemed nervous when he was taking to the sheriff and inquired of the latter
if he did not think Laux and Labigan quarreled, and if he did not think Labigan did the
shooting.
Lasher and Klopstock appeared to be the only two parties residing in Kennedy interested
in the Gold Note Mining Company, and who could possibly have been affected by the
deceased's location of the mining property.
Jake Leick, who is one of the alleged conspirators, is not shown to have been in any way
connected with the Gold Note Mining Company, or that he had discussed with the officers of
that company the act of deceased in relocating a portion of its property. It does appear that
Leick had a location of his own in the vicinity of the Gold Note property upon which he did a
few hours' work upon the day of the killing, the first that he had done for some time; that
he was, to quote from one of the witnesses, a "deadly enemy of deceased," which enmity,
according to the testimony of Mrs.
the day of the killing, the first that he had done for some time; that he was, to quote from one
of the witnesses, a deadly enemy of deceased, which enmity, according to the testimony of
Mrs. Laux, was not due to anything growing out of the deceased's location of a part of the
Gold Note property. If there was anything in the evidence to connect Leick with the murder of
Laux, his personal enmity to Laux might be considered for the purpose of establishing a
motive for the crime, but we think it is not evidence sufficient, standing alone as it does, to
connect Leick with a possible conspiracy upon the part of Klopstock, Lasher, or the
defendant, nor is it a circumstance tending to establish a conspiracy upon their part. The
evidence also shows that Stone and Miller were enemies of Laux, but they are not charged
with being conspirators.
The defendant does not appear to have been a stockholder of the Gold Note Company, or
interested in its affairs in any way other than as an employee of the company in the capacity
of watchman. It appears that about two weeks before the killing some words were passed
between the defendant and the deceased at defendant's cabin, but these were not sufficient to
establish the existence of any serious enmity between the defendant and the deceased. It
appears that at this same conversation the defendant informed deceased and Labigan that he
had been advised by some mining engineer not to interfere with deceased and Labigan as
long as they did not go in the mines.
Counsel for the state refers to the remark made by the defendant at Jake Leick's house on
the evening when Mrs. Laux called to inquire about her husband, to wit: I saw Mr. Labigan
going down the hill, and contends that it was impossible for the defendant to have seen
Labigan going down the hill unless he was at or near the cliff of rocks from which it was
claimed the shots were fired. We are unable to find anything in the testimony that will
support this assumption. It appears that at the same conversation Mr. Leick also stated,
Charlie George said he saw Mr.
said he saw Mr. Labigan going down the hill. Charlie George was not called as a witness in
the case, but it appears that he was in Kennedy on the evening of the shooting, and that Mrs.
Laux had a conversation with him. There is nothing to show that Charlie George did not see
Labigan going down the hill, and no greater inference could be drawn from the defendant's
statement that he had seen him than from the same statement made by Charlie George. It is
not contended that George was a conspirator or unfriendly to the deceased. Besides, it does
not appear what hill was referred to or what time of the day Labigan was seen.
We deem it unnecessary to comment upon all of the circumstances offered in support of
the alleged conspiracy. Suffice it to say that we think the evidence insufficient, and that it was
error for the court below not to sustain defendant's motion to strike. The case would have to
be reversed upon this ground alone, but we think it proper to refer briefly to certain other
circumstances testified to which are independent of the question of conspiracy.
[3-4] Assuming that the circumstance that the witness Labigan saw a man in the cliff of
rocks near the place where the shooting occurred is sufficient to establish that the man so seen
fired the fatal shots, proof that the defendant was that man rests upon the circumstance that on
the day of the shooting the defendant was wearing a black hat belonging to Jake Leick, and
that the witness Labigan, while jumping a distance of eight feet, and glancing for a second or
a fraction of a second in the direction of the man assumed to have done the shooting, 162 feet
distant, was able to identify the hat worn by the defendant as the hat seen upon the man in the
cleft of the adjacent rocks. The hat in question does not appear to have been one of an
unusual pattern. We think the ability of a witness to be able positively to identify such an
article of apparel, under the circumstances detailed in the testimony, is manifestly
improbable. Such identification alone should not be considered of sufficient weight to
warrant a conviction. There is no testimony in the case of the finding of any tracks about
the cliff of rocks where the person was alleged to have been seen, or tracks leading
therefrom.
case of the finding of any tracks about the cliff of rocks where the person was alleged to have
been seen, or tracks leading therefrom. There is some testimony regarding tracks, but it is
impossible to connect them as going from or leading to the cliff in question.
We have read very carefully the nearly 700 pages of testimony without being impressed
that the evidence points with any considerable degree of probability to the defendant as the
guilty party.
There is some testimony given by the doctor who attended Laux after the shooting and by
the latter's widow indicating that after the shooting some one had stamped on Laux's face and
hands with the heel or sole of a boot or shoe. This evidence only adds to the general
uncertainty of the case.
Counsel for the appellant contends that the conviction in this case can only be accounted
for by reason of alleged misconduct upon the part of the district attorney in making his
opening statement, wherein he stated as a fact that deceased made a dying statement in which
he identified the defendant as the person who did the shooting. Upon the trial the court
sustained an objection to the proposed offer of a dying declaration. No objection was
interposed at the time the district attorney made his opening statement, nor at any other time,
nor was any special instruction asked by the defense that the jury disregard such statement.
The jury was, however, instructed relative to rejected evidence generally:
If the court decide that the alleged evidence is inadmissible, then the jury must not
attempt to consider such evidence so decided to be inadmissible and so rejected.
Statements may be made by the prosecuting attorney of such an objectionable character
that an instruction to disregard will not be held to cure the prejudicial effect thereof. At the
time the district attorney made the statement in question there is nothing to indicate that he
was attempting to take any undue advantage of the defendant. Dying declarations are,
however, so frequently objected to by counsel for the defense that prosecuting attorneys
should be careful in making positive statements that a dying declaration of a certain state
of facts was made.
prosecuting attorneys should be careful in making positive statements that a dying declaration
of a certain state of facts was made. He may state what he expects to prove without
encroaching upon defendant's rights or taking chances upon committing reversible error. As
this question is not liable to arise upon a new trial and as the case must be reversed upon
other grounds, we need not determine whether in this case the statement should be regarded
as prejudicial error.
[5] There was some testimony introduced without objection which we think should not be
permitted upon a new trial. We refer to the testimony of the witness Labigan purporting to
detail a conversation with the deceased at the time of hearing two shots fired shortly before
the killing, in which he assumes, in effect, in his remarks to deceased, that the shots were
fired by persons connected with the Gold Note Mining Company.
[6] If this court were confident that no other evidence could be introduced upon another
trial than that held to be admissible upon the present record, we should order the defendant
discharged. As it clearly appears, however, that murder was committed by some one, and
other evidence may exist tending clearly to establish the identity of the murderer, the case will
be remanded for a new trial.
Judgment reversed, and cause remanded for a new trial.
____________
38 Nev. 467, 467 (1915) Bidleman v. Short
[No. 2049]
GEORGE R. BIDLEMAN, WILLIAM E. BIDLEMAN, JANE JONES (A Widow), and
EMMA J. WILLIAMS (A Widow), Appellants, v. WILLIAM C. SHORT and
LUCY B. SHORT (His Wife), Respondents.
[150 Pac. 834]
1. Waters and WatercoursesSurplus or Waste WatersAppropriationRights of Owners.
An owner of land on which surplus or waste waters exist is the owner of the waters, and may consent to
others acquiring rights therein on his property and in ditches thereon to convey the waters to the lands of
the others.
2. Waters and WatercoursesSurplus or Waste WatersAppropriationRights of Owners.
Surplus or waste waters while on land of an individual are not subject to appropriation by others and they
cannot go on the land of the individual and cut and interfere with the ditches thereof and divert the waters
without becoming trespassers.
3. Waters and WatercoursesWrongful Use of WatersEquitable Relief.
Where defendants have gone on the lands of plaintiffs and cut and interfered with ditches thereon and
asserted right so to do and to divert surplus or waste waters of plaintiffs and threatened to continue so to
do, plaintiffs were entitled to relief by injunction.
Suit by George R. Bidleman and others against William C. Short and wife. From a
judgment for costs in favor of defendants, rendered on sustaining a demurrer to the complaint,
plaintiffs appeal. Reversed and remanded.
Summerfield & Richards and J. T. Boyd, for Appellants:
Water reduced to possession becomes the property of the person having the possession; it
is his property, and will be protected by the courts. (Black's Pomeroy on Water Rights, secs.
57, 60, 61, 62; Park's Canal & M. Co. v. Hoyt, 57 Cal. 44; Ball v. Kehl, 95 Cal. 613;
McGuire v. Brown, 106 Cal. 669; Dalton v. Bowker, 8 Nev. 190; Farnham on Water and
Water Rights, vol. 3, 2572, sec. 883; Kinney on Irrigation, vol. 2, secs. 773, 774; Hagerman
Irr. Co. v. McMurry, 113 Pac. 823.)
Appellants are the owners of the surplus and waste waters and ditches on their own land,
and it is the province of equity to protect appellants in their rights. (Brown v. Ashley, 16 Nev.
311.)
If the acts complained of may permanently affect the rights of the appellants, it is not
necessary to show actual damage. (Brown v. Ashley, supra; Gould on Waters, sec. 519.)
George Springmeyer, for Respondents:
Waste water, flowing in an artificial watercourse, is not subject to appropriation. The law
of appropriation applies only to natural streams. (2 Kinney, 2d ed. p. 1151; Weil, 2d ed. p.
247; Cardelli v. Comstock Tunnel Co., 26 Nev. 284.)
The right of an appropriator is measured by the quantity of water applied to a beneficial use.
(Leavitt v. Lassen Irr. Co., 106 Pac. 404; 2 Kinney, 1547; Barnes v. Sabron, 10 Nev. 217;
Roeder v. Stein, 23 Nev. 92; Rev. Laws, sec. 4674.)
One cannot own waters other than those reduced to possession, and can acquire only a
right to the use. (Smith v. Green, 109 Cal. 228, 41 Pac. 1022, 1024.)
The complaint is fatally defective in that it fails to show the quantity of water applied to a
beneficial use. (Walsh v. Wallace, 26 Nev. 299, 99 Am. St. Rep. 692; 3 Kinney, 3009, 2817;
Weil 3d ed. p. 702; Lost Creek Irr. Co. v. Rex, 26 Utah, 485, 73 Pac. 660; Lee v. Hanford, 21
Idaho, 327, 121 Pac. 558; Powers v. Perry, 106 Pac. 594, 598.)
This is an appeal from a judgment for costs in favor of defendants, respondents herein,
following an order sustaining a demurrer to appellant's complaint.
The complaint alleged:
That the plaintiffs Bidleman and their predecessors in interest, for more than ten years last
past, have been the owners and in the possession of certain land in Washoe County,
particularly describing the same, together with certain waters and water rights
appurtenant thereto and thereunto belonging, subject to certain interests therein of the
plaintiffs Jones and Williams.
County, particularly describing the same, together with certain waters and water rights
appurtenant thereto and thereunto belonging, subject to certain interests therein of the
plaintiffs Jones and Williams.
That plaintiffs have maintained and operated certain ditches upon said real property for the
purpose of irrigating the same and draining the surplus and waste waters therefrom to and
into a certain ditch commonly known and called the Jones Ditch, through and by means of
which said ditch the said surplus and waste waters have been conducted to and upon the lands
of the plaintiffs Jones and Williams (particularly describing the same) for the purpose of
irrigating the same.
That for more than ten years last past plaintiffs Jones and Williams have been the owners
and entitled to the exclusive possession of all and singular the said surplus and waste waters
and entitled to have the same conducted from said real property of the plaintiffs Bidleman to
and into the said Jones Ditch, and through and by means thereof into the said lands of
plaintiffs Jones and Williams for the purpose of irrigating the same, and are entitled to enter
upon the said lands of plaintiffs Bidleman for the purpose of constructing, maintaining and
operating thereon such dams, ditches, and other instrumentalities, as may be necessary to
cause such surplus and waste waters to be and to have the same conducted to and into the said
Jones Ditch and onto the said lands of plaintiffs Jones and Williams.
That on or about the _____ day of May, 1911, and during various and sundry times during
the years 1910 and 1911, the defendants wrongfully, willfully, and unlawfully, and without
the consent of the plaintiffs Bidleman, did then and there interfere with and cut and open the
ditches therein mentioned and operated as aforesaid, and did then and there by means of cuts,
dams, and other contrivances, divert therefrom and from the lands of the plaintiffs Jones and
Williams the surplus and waste waters aforesaid, to artificial channels by defendants
constructed, maintained, and operated, and did then and there wrongfully, willfully, and
unlawfully, and without the consent of plaintiffs, appropriate and convert to their own
use such surplus and waste waters and so prevent and preclude plaintiffs Bidleman from
delivering to and plaintiffs Jones and Williams from receiving for the purposes of
irrigation the said surplus and waste waters and the free use and enjoyment thereof.
there wrongfully, willfully, and unlawfully, and without the consent of plaintiffs, appropriate
and convert to their own use such surplus and waste waters and so prevent and preclude
plaintiffs Bidleman from delivering to and plaintiffs Jones and Williams from receiving for
the purposes of irrigation the said surplus and waste waters and the free use and enjoyment
thereof.
That defendants claim the right and threaten to, and, unless restrained by court process,
will, continue, wrongfully, willfully, and unlawfully, and without plaintiffs' consent, to enter
in and upon the said lands of plaintiffs Bidleman to then and there interfere with and cut and
open the ditches therein maintained and operated as aforesaid, and to then and there by means
of cuts, dams, and other contrivances, divert therefrom and from the said lands of plaintiffs
Jones and Williams the said surplus and waste waters to artificial channels by defendants
constructed, maintained, and operated, and continue wrongfully, willfully, and unlawfully,
and without plaintiffs' consent, to appropriate and convert to their own use such surplus and
waste waters, and so prevent and preclude plaintiffs Bidleman from delivering and plaintiffs
Jones and Williams from receiving in and upon their said lands, for the purpose of irrigating
the same, the said surplus and waste waters, all to the permanent and irreparable damage,
detriment, and injury to the plaintiffs, and each of them, and to their said lands.
That plaintiffs have no plain, speedy, or adequate remedy in the ordinary course of law.
The complaint prays for injunctive relief and for costs.
We think the complaint states a cause of action for equitable relief by way of injunction,
and that the court erred in sustaining the demurrer.
[1] It is immaterial the co-called surplus or waste waters are not subject to appropriation so
as to establish a permanent right therein, as in the case of an appropriation of the waters of a
natural stream. It may be that under the rule of economical use there should be no surplus or
waste waters, nevertheless, so-called surplus or waste waters do at times exist and rights
may be acquired therein which may continue so long as there are such waters.
or waste waters do at times exist and rights may be acquired therein which may continue so
long as there are such waters. The complaint alleges the existence of such waters upon the
lands of the plaintiffs Bidleman. So long as such water exists upon their lands, it is their
property, and they may consent to others acquiring rights therein upon their property and in
ditches thereupon for the purpose of conveying such waters to the lands of such other parties.
(Kinney on Irrigation, vol. 2, secs. 773, 774.)
[2] These waters, while upon the lands of the plaintiffs Bidleman, were certainly not
subject to appropriation by the defendants. They could not go upon the lands of the
Bidlemans and cut and interfere with the ditches thereon, in which all the plaintiffs had a
property right, and divert the waters of plaintiffs therefrom without becoming trespassers.
[3] The complaint alleges that defendants have so gone onto the lands of plaintiffs
Bidleman, cut and interfered with the ditches of plaintiffs, assert the right so to do and to
divert the said waters of plaintiffs. The alleged acts of defendants, accompanied with an
alleged right and threat of continuance, constitute a sufficient showing for equitable relief by
injunction. (Brown v. Ashley, 16 Nev. 311.)
The judgment and the order sustaining the demurrer are reversed, and the cause remanded.
____________
38 Nev. 472, 472 (1915) Ely Water Co. v. White Pine County
[No. 2172]
ELY WATER COMPANY, Appellant, v. WHITE PINE COUNTY, Respondent.
[151 Pac. 335]
1. Waters and WatercoursesWater CompaniesFranchise Requirements.
A provision in the franchise company that free water should be supplied a county courthouse, and that the
water company might furnish water for municipal and irrigation purposes and charge rental therefor, did
not obligate the water company to furnish free water for use in sprinkling the courthouse grounds.
2. Waters and WatercoursesWater CompaniesRatesPublic Grounds.
The franchise of a water company provided that it should furnish free water for the use of a courthouse
and certain other public buildings, and also that it might furnish water for municipal and irrigation purposes
and charge rental therefor. The county authorities used the water furnished by the water company to
sprinkle the courthouse grounds, but refused to pay therefor, on the ground that the franchise failed to fix
an applicable rate. The rate charged for water for sprinkling purposes in the city was based upon lots as laid
out on the official town plat, but the courthouse grounds were not so laid out. Held, that the water company
was entitled to recover from the city the fair value of the water furnished.
Appeal from Ninth Judicial District Court, White Pine County; Ben W. Coleman, Judge.
Action by Ely Water Company against White Pine County upon two causes of action.
From a judgment for plaintiff on the second cause of action only, plaintiff appeals. Modified
by allowing judgment on the second cause of action also, and affirmed.
Brown & Belford and J. M. Lockhart, for Appellant:
Appellant is not required under its franchise to furnish free water for sprinkling the
courthouse lawn. The franchise specifies particularly what free service the company is
obliged to perform. A court has power to interpret a contract as between parties before it, but
not to make a new one for them. (V. & T. Ry. Co. v. Lyon County, 6 Nev. 68; Henderson
Water Co. v. Henderson Schools, 65 S. E. 927; Birmingham v. Birmingham W. Co. 42 South.
10.)
If there is no ambiguity apparent in the contract, the words must be taken in their ordinary and
usual signification; the court cannot look beyond the contract for motives and intentions not
expressed. (Rankin v. New England M. Co., 4 Nev. 78.)
Anthony Jurich, for Respondent:
Under the terms of its franchise, appellant is compelled to furnish water free of charge for
the courthouse grounds. (S. V. W. W. v. San Francisco, 52 Cal. 112.)
In construing statutes granting franchises to private corporations, all doubts are to be
resolved in favor of the public. (Lake v. V. & T. Ry. Co., 7 Nev. 294.)
The terms block and lot, as legal subdivisions of a city, have obtained a well-known
meaning, being intended to designate a tract of land that has been set aside and designated in
some way. (N. & S. Lumber Co. v. Hagwer, 42 pac. 388; Ontario L. & I. Co. v. Belford, 27
Pac. 39; Pilz v. Killingsworth, 26 Pac. 305.)
This appeal presents the question of the liability of White Pine County to the appellant for
water furnished respondent county during the year 1913 for sprinkling the lawn surrounding
the courthouse building in the town of Ely. The question involves the construction of certain
provisions of the franchise granted to the appellant corporation by the legislature of 1907,
under an act approved February 26, 1907 (Stats. 1907, c. 25), entitled An act entitled An act
granting to the Ely Water Company the right, privilege and franchise to supply the towns of
Ely and Ely City in White Pine County, State of Nevada, and the additions of said towns,
with water for domestic, municipal, fire protection, irrigation, and other purposes and to
charge rental therefor, and ratifying and confirming a certain grant of a water franchise made
to the said Ely Water Company on the sixteenth day of February, 1907, by the board of
county commissioners of said county and by the said town of Ely, and other matters relating
thereto.' By the terms of the third provision of the franchise the appellant corporation
was required to furnish "free of cost to the said town" twelve fire hydrants for fire
purposes, and for other hydrants required, "over the aforesaid twelve free hydrants, the
said town of Ely shall pay a rental of $5 per month."
By the terms of the third provision of the franchise the appellant corporation was required
to furnish free of cost to the said town twelve fire hydrants for fire purposes, and for other
hydrants required, over the aforesaid twelve free hydrants, the said town of Ely shall pay a
rental of $5 per month. By the terms of the seventh provision it was provided that the
appellant corporation shall furnish and supply water to said town for sprinkling wagons
during the dry season of the year for the purpose of sprinkling the streets of said town, free of
any cost to said town. * * *
By the eighth provision it is provided that the appellant corporation shall furnish and
supply water to the courthouse, hospitals, city hall, and schoolhouses in said town and its
additions free of any cost to said town or its additions, or to said county of White Pine, State
of Nevada, during the life of this instrument; provided, that the cost of all taps, pipes and
plumbing necessary to connect said public buildings with mains or pipes * * * shall be borne
by said town, or its additions, or by said county, as the case may be.
The sixth provision of the charter provides that the appellant corporation shall charge not
more than $6 per season for sprinkling one lot of the dimensions of 100 by 25 feet or less, and
for the sprinkling of each adjacent lot or portion thereof owned by the same person, not more
than $5 per season.
The amount of the claim for sprinkling the courthouse grounds, which covered an entire
block of about four acres, was determined by estimating the number of lots said grounds,
exclusive of the area covered by the building itself, would make of the dimensions referred to
in the sixth provision of the franchise, supra, and applying thereto the rate in force in the
town of Ely for sprinkling in accordance with the said sixth provision.
[1] The lower court held, and we think correctly, that:
The clause providing for free water for the courthouse does not carry with it free water
for the grounds. * * * On the other hand, the act provides that the water company may
furnish water for municipal and irrigation purposes and to charge rental therefor."
company may furnish water for municipal and irrigation purposes and to charge rental
therefor.
Counsel upon either side of this case have been able to find but few authorities that might
be considered in point upon the question whether a provision in a franchise requiring the
furnishing of free water to a courthouse, schoolhouse, or other municipal public building,
would also include the furnishing of free water for the grounds thereof. The only two cases
cited that are analogous to the one here presented are the following; City of Birmingham v.
Water Co., 42 South. 10; Henderson Water Co. v. Henderson Schools, 151 N. C. 171, 65 S.
E. 927. These cases support the construction placed upon the provision of the charter by the
court below. Whatever doubt might have existed in case the proviso of the eighth provision of
the charter had not been included is, we think, removed by the language of such proviso,
which refers to the courthouse, hospital, etc., as said public buildings.
While the court held that the appellant was not required to furnish free water for sprinkling
the courthouse grounds, it was held that it was not entitled to recover, for the reason that no
basis of charge for water so furnished was prescribed in the charter. The court construed the
sixth provision of the charter, supra, as applying to town lots as platted on the official town
plat, the blocks of the town being platted generally in lots of 25 by 100 feet, and not
applicable to a block not so divided into lotsthe block upon which the courthouse was
located being not so platted. We need not, we think, determine whether this construction of
the charter was correct.
[2] Authority exists in support of the view taken by the court below, that where the charter
fails to fix a rate applicable to the municipality no recovery can be had. Were the question
entirely new in this state, we might be disposed to adopt the view of the learned trial judge.
We think, however, that this court, in the case of Virginia Gas Co. v. Virginia City, 3 Nev.
320, in which this court held that the gas company was entitled to recover from the city of
Virginia "the fair value" of all gas furnished "in excess of that which the law made it
incumbent on it to furnish," laid down a rule applicable to the case at bar.
court held that the gas company was entitled to recover from the city of Virginia the fair
value of all gas furnished in excess of that which the law made it incumbent on it to
furnish, laid down a rule applicable to the case at bar. We think the rule applied in the
Virginia City case, supra, more just and equitable, both to the owner of the franchise and to
the municipality, than that laid down by the authorities in support of the decision of the lower
court. The municipality ought not to be put in the position of being deprived of water because
of no specific provision in the charter specifying the rate the municipality should pay, and,
upon the other hand, it would be equally unfair in many cases to expect a holder of a
franchise to supply free water for the sprinkling of several acres of land in a region where
water is scarce.
The Virginia City case, supra, was not called to the attention of the court below, which
would have undoubtedly followed the rule therein laid down, had its attention been directed
to that case. The court found as a fact that the water furnished was of the value charged
therefor, and it was stipulated in the court below that, if the appellant was entitled to recover
at all, it was entitled to recover for the full amount alleged in the complaint.
The judgment is modified, by allowing plaintiff and appellant also the amount sued for in
its first cause of action, and, as so modified, the judgment is affirmed.
McCarran, J.: I concur.
[Coleman, J., having presided at the trial in the lower court, did not participate in the
opinion.]
____________
38 Nev. 477, 477 (1915) Smith v. State
[No. 2169]
A. E. D. SMITH, JOE REEDER, GEORGE HOLMES, WARREN FRUIT, HENRY
HUGHES, JACK FERGUSON, BILL PARSONS, OTTO VAN NORMAN, and
BEN CAMBRON, Respondents, v. STATE OF NEVADA, Appellant.
[151 Pac. 512]
1. RewardsOffer by StatuteKnowledge of Offeree.
Where the legislature by statute authorized the governor to offer rewards for the arrest and conviction of
certain murderers, persons taking such murderers without knowledge that the rewards had been offered
were nevertheless entitled thereto; knowledge of the offer not being a prerequisite to recovery in such case,
since no contractual relation was contemplated by the legislature, the right to the reward following the
performance of the service by operation of law.
2. RewardsArrest and ConvictionKilling.
Where the legislature by statute authorized the governor to offer rewards for the arrest and conviction of
certain murderers, which was done, upon killing such murderers while resisting arrest by force of arms, the
members of a posse were entitled to the rewards; the killing being justifiable and operating as a lawful
excuse for noncompliance with the full conditions of the reward.
Appeal from First Judicial District Court, Ormsby County; Frank P. Langan, Judge.
Action by A. E. Smith and others against the State of Nevada to recover a reward offered
by the Governor for the apprehension of certain alleged murderers. From a judgment for
plaintiffs, defendant appeals. Affirmed.
Geo. B. Thatcher, Attorney-General, for Appellant;
It is essential to the recovery of a reward that the party claiming it knew of and acted upon
the offer before he performed the service on which he bases his claim. There is no mutual
assent or agreement unless such knowledge exists. (1 Story on Contracts, sec. 493; Smith v.
Vernon County, 188 Mo. 501; Stamper v. Temple, 6 Hump. 113; Tobin v. McComb, 156 S.
W. 237; Hoggard v. Dickerson, 165 S. W. 1135; Fitch v. Snedaker, 38 N. Y. 248; Howland
v. Lounds, 51 N. Y. 604; Stone v. St. L. Union Tr. Co., 130 S. W. 825, 828; Counch v. State,
103 N. W. 942, 944; 9 Cyc. 254.)
38 Nev. 477, 478 (1915) Smith v. State
There was no substantial or any compliance with the terms of the contract as embraced in
the offer of reward. (Quolanek v. Baker Mfg. Co., 137 N. W. 770; Clanton v. Young, 11 Rich.
546; Furman v. Parke, 21 N. J. L. 310; Jones v. Phoenix Bank, 8 N. Y. 228; Bent v.
Wakefield Bank, 4 L. R. C. P. 1; Wall v. Proctor, 3 Metc. 447; Gould v. Chickasaw, 37 South.
710.)
A substantial performance of the service proposed in the advertisements must be shown to
enable the party claiming the reward to recover. (Burke v. Wells Fargo, 50 Cal. 221; Besse v.
Dyer, 9 Allen, 151; Williams v. West Shore R. R., 191 Ill. 610; Rawls v. Stephens, 104 Mo.
App. 115; Lovejoy v. Atchison R. R., 53 Mo. App. 356; Shuey v. U. S., 92 U. S. 73.)
Sweeney & Morehouse and W. W. Griffin, for Respondents:
Prior knowledge of the offer of reward is not necessary to recovery. (Auditor v. Ballard, 9
Bush. 572; Morelle v. Quarles, 35 Ala. 54; Wilson v. Stump, 103 Cal. 255; Marvin v. Treat,
37 Conn. 96; Everman v. Hymen, 26 Ind. App. 165; Howland v. Lounds, 51 N. Y. 604; Reid
v. Paige, 55 Wis. 496; Drummond v. U. S., 35 Ct. Cl. 356; Eagle v. Smith, 4 Houst. 293;
Dawkins v. Laffington, 26 Ind. 199; Clinton County v. Davis, 162 Ind. 60; Russell v. Stewart
49 Vt. 170; Campbell v. Mercer, 108 Ga. 103; Cummings v. Clinton County, 108 Mo. 162;
Broadnax v. Ledbetter, cited 9 L. R. A. n.s. 1057.)
The killing of the Indians was such a performance of the terms of the offer as entitles
plaintiffs to the reward. (Haskell v. Davidson, 91 Me. 488; Kinn v. Bank, 118 Wis. 537;
Junista Co. v. McDonald, 122 Pa. St. 115; Washburn v. Humphreys, 35 N. C. 88; Tobin v.
McComb, 156 S. W. 237; Porterfield v. State, 92 Tenn. 289; Granshaw v. Roxbury, 7 Gray,
374; Dexter v. Norton, 47 N. Y. 62; Stone v. Dysert, 20 Kan. 123; Mosley v. Stone, 108 Ky.
493.)
This is an action to recover the amount of a reward offered by the governor under the
provisions of an act of the legislature reading: "An act authorizing the governor to offer a
reward for the arrest and conviction of the person or persons guilty of the murder of
Harry Cambron and three associates in Washoe County.
38 Nev. 477, 479 (1915) Smith v. State
An act authorizing the governor to offer a reward for the arrest and conviction of the person
or persons guilty of the murder of Harry Cambron and three associates in Washoe
County.
Approved February 17, 1911.
Section 1. That the governor is hereby authorized to offer a reward of one thousand
dollars in each instance, and not exceeding five thousand dollars in all, for the arrest and
conviction of the person or persons guilty of the murder of Harry Cambron and three
associates in Washoe County.
Sec. 2. There is hereby appropriated, out of any money in the treasury, not otherwise
appropriated, the sum of five thousand dollars, to carry out the provisions of this act. (Stats.
1911, p. 16.)
This case was submitted to the court below upon the following agreed statement of facts:
That during or about the month of January, 1911, Harry Cambron and three associates
were murdered in Washoe County, State of Nevada. That thereafter the legislature of the
State of Nevada authorized the offer of a reward for the arrest and conviction of the person or
persons guilty of the murder of Harry Cambron and three associates, such act having been
approved on February 17, 1911. That thereafter, and on the 17th day of February, 1911,
Tasker L. Oddie, Governor of the State of Nevada, did offer a reward of $1,000 in each case
for the arrest and conviction of the person or persons guilty of the murder of Harry Cambron
and three associates. That Harry Cambron and three associates were murdered by a band of
Indians, which included Indian Squaw Jennie, unknown Indian boy, Shoshone Mike, Buck
Disenda, Buck Kinnan, Buck Cupena, and unknown Indian squaw. That A. E. Smith, Joe
Reeder, George Holmes, Warren Fruit, Henry Hughes, Jack Ferguson, Bill Parsons, Otto Van
Norman, and Ben Cambron, plaintiffs herein, were members of a posse on the trail of the said
Indians, and did, on or about the 26th day of February, 1911, kill the certain Indians above
referred to in an attempt to arrest said Indians, who were then and there murderers of said
Harry Cambron and three associates, while said Indians refused to surrender, and were
resisting arrest for the said murder of said Harry Cambron and three associates, but that
none of said assassins were arrested, tried, or convicted by any court.
38 Nev. 477, 480 (1915) Smith v. State
murderers of said Harry Cambron and three associates, while said Indians refused to
surrender, and were resisting arrest for the said murder of said Harry Cambron and three
associates, but that none of said assassins were arrested, tried, or convicted by any court. That
none of the plaintiffs herein knew of the reward so offered by the governor, as provided for
by the act of the legislature, until after the killing of the said Indians, who were the murderers
of said Harry Cambron and three associates, on or about February 26, 1911.
The appeal presents two questions:
(1) Is prior knowledge of the offer of the reward necessary?
(2) Have respondents complied with the conditions of the reward?
[1] Many cases hold that where the claimant of a reward had no prior knowledge of its
offer, and did not act by reason thereof, he is not entitled to recover. This rule appears to be
well established where the reward is offered by a private individual. The rule is applied by
many, but not all, of the courts where a reward has been offered by public authorities in
pursuance of the provisions of a general statute. This rule is based upon the theory that an
undertaking to secure a reward rests upon contract, and that by an arrest made or other act
performed, for which a reward is offered, a person having no knowledge of the offer of
reward has done nothing in consideration of the reward, and has no ground to enforce the
contract, for, as to him, no contractual relations exist. In Broadnax v. Ledbetter, 100 Tex.
375, 99 S. W. 1111, 9 L. R. A. n. s. 1057, the Supreme Court of Texas says:
While we have seen no such distinction suggested, it may well be supposed that a person
might become legally entitled to a reward for arresting a criminal, although he knew nothing
of its having been offered, where it is or was offered in accordance with law by the
government. A legal right might in such a case be given by law without the aid of contract.
But the liability of the individual citizen must arise from a contract binding him to pay.
The above excerpt from the Texas case is not quoted as the decision of the court, no such
question being involved in that case, but because the suggestion is therein made that in a
case like the one at bar a legal right might exist independent of contract.
38 Nev. 477, 481 (1915) Smith v. State
as the decision of the court, no such question being involved in that case, but because the
suggestion is therein made that in a case like the one at bar a legal right might exist
independent of contract.
None of the numerous cases to which our attention has been called deals with the case of a
statute authorizing a reward in a particular case. It can hardly be said, we think, in a case of
this kind, that any contractual relation is contemplated by the legislature, but rather that the
right to the reward follows by operation of law, if a compliance with the provisions of the
statute has been shown. When the statute was passed authorizing the reward, such statute
became a part of the law of the state. Every one is presumed to know the law, and this
presumption is not even rebuttable. (12 Cyc. 155.) While the presumption does not imply
knowledge of the actual offer of the reward, the presumption of knowledge of the statute is
worthy of consideration in determining that no contractual relation should be held to enter
into the offer of reward in such a case.
In a proceeding before the United States Court of Claims to recover a reward offered by
the attorney-general of the United States, the court, speaking through Mr. Justice Peelle, said:
The purpose of a reward is, of course, to stimulate persons to make arrests, and while
knowledge thereof is essential to effect that purpose, still if the offer be a general promise to
any one, made by a public officer with authority, as in the case at bar, the motives of the
person who makes such arrest cannot be inquired into. The arrest itself is conclusive of the
motives which prompted it. (Williams v. Carwardine, 4 Barn. and Adolph. 621; Auditor v.
Ballard. 9 Bush, 572, 15 Am. Rep. 728; Dawkins v. Sappington, 26 Ind. 199.) There are
some authorities holding that knowledge of a reward offered is essential to a recovery; but we
think the weight of authority is as we have stated it, especially where the reward has been
offered by a public officer with authority, as in the case at bar. (Drummond v. United States,
35 Ct. Cl. 372.)
As said by the Supreme Court of Kansas, in Elkins v. Board of Commissioners, S6 Kan.
38 Nev. 477, 482 (1915) Smith v. State
v. Board of Commissioners, 86 Kan. 305, 120 Pac. 542, 46 L. R. A. n. s. 662:
Many conflicting authorities are cited to sustain the contentions of the respective parties.
A careful reading of them all, and others, indicates that each case, as to the circumstances and
the object sought to be obtained in offering the reward, must in a measure be considered by
itself. (46 L. R. A. n. s. 668.)
The circumstances surrounding the offer of reward in the case at bar are such, we think,
that the legislature never contemplated that knowledge of the offer should be a prerequisite to
a right to recover. The murder of the four stockmen in midwinter, in a part of the state remote
from centers of population, indicated its perpetration by Indians. It was certain that whoever
undertook the capture of the murderers had to assume unusual hardships and dangers in a
country where communication with the outside world was difficult and at times impossible. It
may reasonably be assumed that the legislature had knowledge at the time of the passage of
the act that one or more posses were already in pursuit of the outlaws.
[2] The fact upon which the second question must be determined has no parallel in the
reported cases, and yet we think precedent exists for a rule which is applicable to the facts of
this case. The offer of the reward was for the arrest and conviction of the person or persons
guilty of the murder of Harry Cambron and three associates. There was neither arrest nor
conviction, for the reason that the persons guilty of the murder were all killed while
resisting arrest. The persons composing the posse were authorized to make an arrest of the
murderers. (Rev. Laws, sec. 6954.) The taking of the lives of the murderers, while resisting
arrest by force of arms, was also justifiable. (Rev. Laws, secs. 6396, 6397.)
As said in the notes to the case of Elkins v. Board of Commissioners, supra:
In construing rewards offered for arrest and conviction, the courts have been inclined to
look with disfavor on a too technical interpretation of the word 'conviction.'" {46 L. R. A. n.
s. 664.)
38 Nev. 477, 483 (1915) Smith v. State
on a too technical interpretation of the word conviction.' (46 L. R. A. n. s. 664.)
The author of the note also says:
One who offers a reward for the performance of a certain service may prescribe any terms
he may wish, but as experience has shown that many persons are profuse in their promises
and slow in meeting them, and are inclined to take advantage of mere technicalities in order
to avoid carrying out their end of the agreement, courts have often, as in Elkins v. Wyandotte
County, held that a substantial compliance with the terms is sufficient, especially where a
literal compliance would be impossible.
The Supreme Court of Connecticut, in the Matter of Kelly, 39 Conn. 159, held: That the
statute ought to receive an equitable, not a strict or technical, construction, and that so
construed the petitioner was fairly within its provisions and entitled to the reward.
In Haskell v. Davidson, 91 Me. 488, it was held: An offer of a reward for the arrest and
conviction of an offender cannot be taken literally.
In case of Mosley v. Stone, Auditor, 108 Ky., 492, is analagous to the one at bar. It was
therein held: Plaintiff is entitled to a reward offered by the governor for the arrest of a
fugitive and his delivery to the jailer, though in making the arrest he wounded the fugitive so
that he died before he could be delivered to the jailer.
In the case at bar the arrest and conviction of the persons for whom the reward was offered
was rendered impossible by reason of their being killed while resisting arrest. Their killing, in
the manner detailed in the agreed statement of facts, was justifiable and operated as a lawful
excuse for noncompliance with the full conditions of the reward.
It is our conclusion that there has been shown a substantial compliance with the conditions
of the reward, and the respondents are entitled to recover.
Judgment affirmed.
____________
38 Nev. 484, 484 (1915) In Re Bowman and Best
[No. 2192]
In the Matter of the Application of ARTHUR BOWMAN and
HENRY BEST for a Writ of Habeas Corpus.
[151 Pac. 517]
1. Habeas CorpusEvidenceAccomplices.
On an application for habeas corpus by persons held on the charge of burglary, evidence by the sole
witness against them held not sufficient to show that he was an accomplice.
2. Criminal LawParties to OffensesAccomplice.
Where it does not appear that a person knowingly, voluntarily, and with common intent with the
alleged principal offender, united in the commission of the crime charged, such person is not an
accomplice.
Original Proceeding. Application by Arthur Bowman and Henry Best for a writ of habeas
corpus. Writ denied, and proceedings dismissed.
James Dysart, for Petitioner:
Every person concerned in the commission of a felony is an accomplice. (Rev. Laws, sec.
6274; State v. O'Keefe, 23 Nev. 127, 43 Pac. 918; State v. Jones, 7 Nev. 408; Ex Parte Oxley,
38 Nev. 379, 149 Pac. 992; People v. Coffey, 161 Cal. 433, 119 Pac. 901, 39 L. R. A. n. s.
704; State v. Spotted Hawk, 55 Pac. 1026.)
One receiving stolen property, knowing it to have been stolen, is an accomplice. (Walker
v. State, 37 S. W. 423; Crawford v. State, 34 S. W. 927.)
E. P. Carville, District Attorney, for Respondent.
This is an original proceeding in habeas corpus. It is alleged on behalf of petitioners that
they are in the custody of the sheriff of Elko County upon a commitment issued by the justice
of the peace of Elko township pursuant to an order of said justice holding petitioners upon a
preliminary examination to answer for the crime of burglary; that such commitment was
issued without reasonable or probable cause.
The petition recites that petitioners have heretofore applied to the Fourth Judicial District
Court in and for Elko County for their discharge upon habeas corpus, and their petition
denied.
[1] The case presents the sole question whether it can be said as a matter of law that the
witness Hyman Sutton, who gave the only testimony connecting petitioners with the alleged
offense, was an accomplice. It is the contention of counsel for petitioners that the testimony
of the witness Sutton shows him to have been an accomplice, and, his testimony being
uncorroborated, petitioners are within the rule applied in the recent case of Ex Parte Oxley,
38 Nev. 379, 149 Pac. 992. Counsel for the state contends that Sutton was not an accomplice,
and it appears that he has never been arrested for, or charged with complicity in, the alleged
offense.
The witness Sutton testified that he was in the business of peddling and in buying and
selling hides and junk; that about the 30th day of May of this year he was at Mountain City in
Elko County; that at that time and place he met the petitioner Best in a store, and the latter
informed him he had some junk which he offered to sell to the witness; that he (Sutton) made
some inquiry of the storekeeper as to whether Best had any junk for sale; that Best stated that
he owned or had located certain mining property near the town upon which there was a
building containing the junk, which consisted of certain old brass weights; that about 5
o'clock in the afternoon of the same day the witness and the petitioners Best and Bowman
went to a house about half a mile from the town, and upon arriving at the house the petitioner
Best pushed aside a window, entered the house and took out the junk, the witness and
Bowman, in the meantime, remaining about fifteen yards from the house; that Best tried to
sell the junk to the witness there upon the ground, but he refused, stating for him to take it to
Rutherford's store and he would pay him 5 cents per pound for the same; that brass was then
worth 8 cents per pound in San Francisco, and it cost 1 1J2 cents per pound freight from
Elko to San Francisco; that the junk was carried by the three parties to Bowman's house
where it was weighed, and that it weighed 125 pounds; that that next morning about
half-past 9 o'clock witness went to Bowman's house and found the junk sacked and he
paid Bowman $6.25 for the same; that at that time Best told him to keep the sacks
covered up; that the remark caused him to be suspicious that there was something wrong
about the matter; that while driving out of town with his brother and when about a
quarter of a mile therefrom he got to thinking about there being something wrong about
this affair; that about this time his brother cut into one of the weights and found it to be
lead; that he drove back to Mountain City and demanded of Best and Bowman that they
give him back his money, which they refused to do; that he then offered to take $4 and
lose $2.25, which proposition, also, was refused; that Bowman then told him he
{Bowman) was a constable, that it was all right, and if anybody bothered him they would
go with him to Elko; that the reason he went back to demand his money and return the
junk was both because he was suspicious there was something wrong and because the
junk he bought for brass was lead, or principally lead; that he would have gone back just
the same, if he had not discovered the junk to be lead; that the junk was found by the
officers in the possession of the witness in the town of Elko several days later, and to the
officers he told the circumstances of its coming into his possession.
per pound in San Francisco, and it cost 1 1/2 cents per pound freight from Elko to San
Francisco; that the junk was carried by the three parties to Bowman's house where it was
weighed, and that it weighed 125 pounds; that that next morning about half-past 9 o'clock
witness went to Bowman's house and found the junk sacked and he paid Bowman $6.25 for
the same; that at that time Best told him to keep the sacks covered up; that the remark caused
him to be suspicious that there was something wrong about the matter; that while driving out
of town with his brother and when about a quarter of a mile therefrom he got to thinking
about there being something wrong about this affair; that about this time his brother cut into
one of the weights and found it to be lead; that he drove back to Mountain City and demanded
of Best and Bowman that they give him back his money, which they refused to do; that he
then offered to take $4 and lose $2.25, which proposition, also, was refused; that Bowman
then told him he (Bowman) was a constable, that it was all right, and if anybody bothered him
they would go with him to Elko; that the reason he went back to demand his money and
return the junk was both because he was suspicious there was something wrong and because
the junk he bought for brass was lead, or principally lead; that he would have gone back just
the same, if he had not discovered the junk to be lead; that the junk was found by the officers
in the possession of the witness in the town of Elko several days later, and to the officers he
told the circumstances of its coming into his possession.
The direct and cross-examination of the witness Sutton is quite lengthy, but the main facts,
as testified to by him, are detailed above. The witness nowhere admits any prior knowledge
that petitioner Best was not the owner of the building entered or of the property taken, or that
he had any suspicions that there was anything wrong until the following morning, when the
property was loaded in his wagon and, as he says, petitioner Best told him to keep it covered
up.
him to keep it covered up. It may be that the discovery that the material was lead, instead of
brass, was the impelling motive that caused the witness to return to the town and demand his
money back; but he says he would have returned anyway. He is assured by Bowman,
according to his testimony, that the deal is all right; that Bowman is the constable, and if any
one makes him trouble both petitioners will go with him to Elko. It appears from the
testimony of the witness that $1.87 1/2 was all he could profit from the transaction, including
hauling it to Elko, a distance of about 100 miles.
[2] It cannot, we think, be said, as a matter of law, that the testimony given by the witness
Sutton shows him to have been an accomplice. We are bound, on this proceeding, to accept
the testimony of the witness as true. Assuming the truthfulness of the statements of the
witness, it does not appear therefrom that he knowingly, voluntarily, and with common intent
with the alleged principal offender, united in the commission of the crime, and unless it does
so appear it cannot be said that the witness is an accomplice. (1 R. C. L. 158, par. 4; State v.
Douglas, 26 Nev. 204, 65 Pac. 802, 99 Am. St. Rep. 688; State v. Smith, 33 Nev. 438, 117
Pac. 19; State v. District Court, 37 Mont. 191, 95 Pac. 593, 15 Ann. Cas. 743.)
Upon a trial of the case the jury would be the judge of the credibility of the witness, and
whether or not he was in fact an accomplice could be submitted to the jury under proper
instructions. (State v. Carey, 34 Nev. 309, 122 Pac. 868; Johnson v. State, 58 Tex. Cr. R.
244, 125 S. W. 16; Driggers v. United States, 21 Okl. 60, 95 Pac. 612, 129 Am. St. Rep. 823,
17 Ann. Cas. 66; People v. Coffey, 161 Cal. 433, 119 Pac. 901, 39 L. R. A. n. s. 704; State v.
O'Keefe, 23 Nev. 127, 43 Pac. 918, 62 Am. St. Rep. 768.)
It is further contended that the evidence is insufficient to justify holding the petitioner
Bowman to answer. We think there is no merit in this contention. Whether or not it is
sufficient to support a conviction, it is sufficient to hold the accused on the ground of
probable cause.
(In Re Kelly, 28 Nev. 28 Nev. 491, 83 Pac. 223; State v. O'Keefe, supra; Jahnke v. State, 68
Neb. 154, 94 N. W. 158, 161, 104 N. W. 154.)
Order discharging petitioners is denied, and proceedings dismissed.
____________
38 Nev. 488, 488 (1915) State v. Cole
[No. 2181]
STATE OF NEVADA, Ex Rel. W. K. FREUDENBERGER, Petitioner v.
GEORGE A. COLE, as Controller of the State of Nevada, Respondent.
[151 Pac. 944]
1. StatutesAmendmentConstitutional Provisions.
By direct provision of Const. art. 4, sec. 17, the legislature cannot amend an act by reference to its
title only, but must reenact and publish at length the act as revised or amended.
2. StatutesAmendmentConstitutional Provisions.
Rev. Laws 1912, p. 1283, entitled An act making the railroad commission * * * ex officio a public
service commission for the regulation and control of certain public utilities, etc., in section 16 provides
that the commission shall have authority to employ an expert engineer at a salary of $3,600 per annum and
traveling expenses. Relator was so employed, but after the enactment of Stats. 1913, c. 261, entitled An
act regulating the salaries of certain state officers, and providing that the annual salary of the chief
engineer of the public service commission shall be $2,500, the state controller refused to draw his warrant
in relator's favor at the rate of $3,600 a year, but only at the rate of $2,500. Relator sought mandamus,
contending that the act of 1913, as an act amending the public service act, violated Const. art 4, sec. 17,
providing that each law enacted by the legislature shall embrace but one subject and matter properly
connected therewith, which shall be briefly expressed in the title, and that no law shall be revised or
amended by reference to its title only, but in such case the act as revised or section as amended shall be
reenacted and published at length. Held, that the act of 1913 was valid, it not purporting to be an
amendatory act, but clearly an independent act complete in itself, which was not embraced in the
constitutional requirement, and might alter the prior statute without referring to it.
Original Proceeding. Mandamus by the State, on the relation of W. K. Freudenberger,
against George A. Cole, State Controller. Respondent demurs to the petition. Demurrer
sustained.
38 Nev. 488, 489 (1915) State v. Cole
William Forman, for Petitioner:
The act of the legislature of 1913, upon which the state controller bases his authority for
drawing petitioner's warrant at the reduced salary of $2,500 a year, is unconstitutional, being
violative of section 17, article 4, of the state constitution. The act is in no sense a
supplemental act, nor does it relate to the same subject-matter. To effect a repeal, a later
statute must relate to the same subject as that covered by the earlier one. (Sutherland on Stat.
Constr., p. 468.) In changing the terms and provisions of a statute already in force, there must
be a strict compliance with constitutional requirements. (State v. Hallock, 19 Nev. 384;
Feibleman v. State, 98 Ind. 520; State v. Commissioners, 22 Nev. 400; State v. Gibson, 30
Nev. 353; Abel v. Eggers, 36 Nev. 372.)
Geo. B. Thatcher, Attorney-General, and William H. McKnight, for Respondent:
The statute in question is not an amendatory act, but is an original statute, complete in
itself, and therefore is not violative of the state constitution, sec. 17, art. 4. (So. Pac. Co. v.
Bartine, 170 Fed. 725.) The act is within all the constitutional requirements. (Russell v.
Esmeralda Co., 32 Nev. 312.) This constitutional provision was not intended to abolish the
doctrine of repeals by implication, nor the maxim that, where statutes are inconsistent with
each other, the later repeals the earlier. (Higgins v. Board, 51 Pac. 72; Sutherland on Stat.
Const., 2d ed., sec. 261; Bradley v. Esmeralda Co., 32 Nev. 167; State v. Commissioners, 21
Nev. 235; Thorpe v. Schooling, 7 Nev. 17.)
Errors in the use of words, which are not calculated to mislead as to the subject of the act,
will be regarded by the courts as mere clerical mistakes, in nowise impairing the validity of
the law. (State v. Hallock, 19 Nev. 388.) In interpreting statutes, the great object of courts is
to give effect to the manifest purpose of the legislature; and this has been done in opposition
to the words of the act. (Gibson v. Mason, 5 Nev. 283, 311; State v. Eggers, 36 Nev. 372,
3S1
38 Nev. 488, 490 (1915) State v. Cole
36 Nev. 372, 381; Ex Parte Prosole, 32 Nev. 378, 108 Pac. 630; Ex Parte Siebenhauer, 14
Nev. 365.)
Petitioner is an officer. (Vaughn v. English, 8 Cal. 42; Spooner v. McConnell, 22 Fed. Cas.
939, 943; State v. Cole, 38 Nev. 215, 148 Pac. 551.)
The legislature, at its session in 1911, passed an act, the title of which reads as follows:
An act making the Railroad Commission of Nevada ex officio a public service
commission for the regulation and control of certain public utilities, prescribing the manner in
which such public utilities shall be regulated and controlled, requiring such public utilities to
furnish reasonably adequate service and facilities, prohibiting unjust and unreasonable
charges for services rendered by such public utilities, providing penalties for violation of the
provisions of this act, authorizing such public service commission to appoint an expert
engineer and to employ clerks and assistants, and making an appropriation for carrying out
the provisions of this act. (Approved March 23, 1911. Revised Laws 1912, p. 1283.)
Section 16 of said act provides that said commission shall have authority to employ an
expert engineer at a salary of $3,600 per annum and necessary traveling expenses. The
petitioner was so employed by the commission, and has been, and is now, acting as expert
engineer for said commission.
The legislature, at its session in 1913, passed an act, the title of which reads as follows:
An act regulating the salaries of certain state officers of the State of Nevada. (Approved
March 26, 1913. Stats. 1913, p. 404.)
By the terms of the act of 1913 alluded to it is provided that the annual salary of the chief
engineer of the public service commission shall be $2,500. Since the first Monday of January,
1915, the respondent, as state controller, has refused to draw his warrant in favor of petitioner
at the rate of $3,600 per year, as fixed by the public service act of 1911, but has drawn his
warrant in favor of petitioner at the rate of $2,500 per year, as provided in the act of
1913.
38 Nev. 488, 491 (1915) State v. Cole
act of 1911, but has drawn his warrant in favor of petitioner at the rate of $2,500 per year, as
provided in the act of 1913.
[1-2] The petition recites the passage of the two acts, the employment of relator, the
official capacity of respondent, and the refusal of respondent to draw his warrant except as
herein stated. It also sets out section 17 of article 4 of the constitution of the State of Nevada,
which reads as follows:
Each law enacted by the legislature shall embrace but one subject, and matter properly
connected therewith, which subject shall be briefly expressed in the title; and no law shall be
revised or amended by reference to its title only; but, in such case, the act as revised, or
section as amended, shall be reenacted and published at length.
Petitioner prays that a peremptory writ of mandamus issue to respondent ordering him to
draw his warrant in favor of relator on the basis of a yearly salary of $3,600.
To the petition the respondent demurred upon the ground that the petition did not state
facts sufficient to constitute a cause of action.
Relator contends that the act of 1913, supra, is void because it violates the constitutional
provision quoted, and relies mainly upon the case of State v. Hallock, 19 Nev. 384, 12 Pac.
832, to sustain his position. There is no doubt in our minds but that the decision in that case
correctly states the law. It was a case in which the court passed upon the constitutionality of
an act which unquestionably sought to amend a former act by reference to its title. It is clear
that, when the legislature seeks to amend an act, it must comply with the terms of the
constitution. But the legislature did not undertake by the act of 1913, supra, to amend the act
of 1911, supra. The act of 1913 did not purport to be an amendatory act. It was clearly an
independent act, complete in itself. Such acts are almost universally held not to violate the
terms of the constitutional provision above quoted. The rule applicable to the case at bar is
stated in 26 Am. & Eng. Ency. Law, 2d ed. p. 707, as follows: The constitutional
requirement is not intended to embrace a statute complete in itself, and such a statute
may modify or amend prior statutes without referring to them"citing authorities.
38 Nev. 488, 492 (1915) State v. Cole
requirement is not intended to embrace a statute complete in itself, and such a statute may
modify or amend prior statutes without referring to themciting authorities.
Cyc. says:
* * * Furthermore, an act which on its face is a complete and perfect act of legislation and
does not purport to amend prior legislation is not interdicted by such a provision, although it
amends by implication other legislation on the same subject. (36 Cyc. 1064, citing a great
many authorities.)
In the case of Southern Pacific Company v. Bartine (C. C.) 170 Fed. 739, where this
question was before the court, Judge Farrington said:
Hence courts have not inclined to extend this prohibition beyond the mischief which it
was designed to prevent. Where a new act deals with the details of a former law and is
designed to correct its defects and remedy its deficiencies without changing its general
framework, then in order that the act as amended may be readily and fully understood, and the
force and effect of changes appreciated, the original act or section as amended must be set out
at length and its title referred to; but when a new act is complete in itself, when it does not
purport to be amendatory of any previous act, and requires no reference to another law to
discover its scope and meaning, the mischief to be guarded against is not present, and the
reason for the rule fails. In such a case, though the new law has the effect of modifying a
former law, it is not an amendatory statute within the meaning of the constitution, and the
previous law as modified or amended need not be reenacted or published at length nor is it
requisite to the validity of the new law that it refer to the title of the old law. Hence an act of
the legislature not amendatory in character, but original in form and complete in itself,
exhibiting on its face what the law is to be, its purpose and scope, is valid, notwithstanding it
may in effect change or modify some other law on the same subject.' (Warren v. Crosby, 24
Or. 558, 34 Pac. 661, 662; 1 Lewis's Sutherland, Stat. Const. sec.
38 Nev. 488, 493 (1915) State v. Cole
239; In Re Dietrick, 32 Wash. 471, 476, 478, 73 Pac. 506; Northern Counties Investment
Trust v. Sears, 30 Or. 388, 41 Pac. 931, 35 L. R. A. 188, 194; State v. Rogers, 107 Ala. 444,
19 South. 909, 32 L. R. A. 520, 522; Ex Parte Pollard, 40 Ala. 98; In Re Buelow, 98 Fed. 86,
89; City of St. Petersburg v. English, 54 Fla. 585, 45 South. 483, 486; St. Louis I. M. & S. Ry.
Co. v. Paul, 64 Ark. 83, 40 S. W. 705, 37 L. R. A. 504, 508, 62 Am. St. Rep. 154; Erford v.
City of Peoria, 229 Ill. 546, 82 N. E. 374, 375; People v. Mahaney, 13 Mich. 481, 497; Lake
v. Palmer, 18 Fla. 501, 510; Hellman v. Shoulters, 114 Cal. 136, 44 Pac. 915, 919, 45 Pac.
1057; Evernham v. Hulit, 45 N. J. Law, 53.)
Sutherland, in the first volume of his work on Statutory Construction, at page 448, says
that a statute which in general terms repeals all act and parts of acts inconsistent with its
provisions is not amendatory.
In State v. Trolson, 21 Nev. 419, 432, 32 Pac. 930, 933, where the court had under
consideration the constitutionality of a statute of 1887 (Stats. 1887, p. 81, c. 76), entitled An
act to further define and punish embezzlement,' which neither referred to nor reenacted any
previous law, in response to the contention that the statute was invalid because it was
virtually an amendment of sections 4634 and 4635, Gen. Stats. Nev. 1885, Judge Bigelow,
concurring, said: In my judgment, the weight of authority and the more practical reason is
with those that hold the general rule that the clause of the constitution under consideration
does not apply unless the subsequent statute is, in terms as well as in effect, an amendment of
the preceding statute. Speaking of the constitutional provision that an amended section of a
statute must be reenacted and published at length, Judge Cooley says: It should be observed
that statutes which amend others by implication are not within this provision; and it is not
essential that they even refer to the acts or sections which by implication they amend.
(Const. Lim. 182.) This statement is well supported by the adjudged cases of many states. A
statute is frequently so interwoven with others and directly or indirectly modifies or amends
so many others, and the rule contended for is itself so uncertain and indefinite, and in its
nature incapable of reasonably fixed limits of application, that, as it seems to me, its
adoption would lead to more uncertainty and confusion in the law than it would
eliminate.'"
38 Nev. 488, 494 (1915) State v. Cole
amends so many others, and the rule contended for is itself so uncertain and indefinite, and in
its nature incapable of reasonably fixed limits of application, that, as it seems to me, its
adoption would lead to more uncertainty and confusion in the law than it would eliminate.'
We are clearly of the opinion that the act of 1913 does not violate the terms or the spirit of
the constitutional provision mentioned.
The demurrer is sustained.
Petition for rehearing denied.
____________
38 Nev. 494, 494 (1915) State v. Miller
[No. 2190]
STATE OF NEVADA, Ex Rel. GEORGE A. COLE, as Controller of the State of Nevada,
Petitioner, v. MAJOR H. MILLER, as County Treasurer of the County of Elko, State of
Nevada, Respondent.
[151 Pac. 943]
1. TaxationDisposition of TaxesRight of State.
Rev. Laws, sec. 3748, declares that the county auditors shall on the first Monday of each month furnish
the controller a statement of all moneys in the respective county treasuries, that the treasurers shall always
hold themselves ready to pay all moneys in their hands belonging to the state whenever required to do so
by order of the state controller and state treasurer, and that on making payments into the state treasury the
county treasurer shall furnish the controller with a statement. Stats. 1913, c. 134, sec. 7, declares that any
property owner who has initiated a court proceeding for redress from any increased valuation, and who
shall have paid his December installment of taxes, may pay his June installment in two payments, one
payment in a sum which, when added to the December installment, shall represent the amount of taxes
payable if computed on the old valuation, plus any improvements, and the other the balance of the full June
installment, which sum shall be kept as a special deposit until the court by its findings shall award it, and
from which, if the property owner be successful, he shall be entitled to a refund. Taxpayers paid their taxes
under protest, but did not commence any court action. Held, that they were entitled to relief only upon
complying with the terms of the statute, and the county treasurer could not withhold settlement from the
state treasurer on the ground that the taxes had been paid under protest.
Original Proceeding by the State, on the relation of George A. Cole, as State Controller,
for a writ of mandamus against Major H. Miller, as County Treasurer of the County of Elko.
Writ issued.
Geo. B. Thatcher, Attorney-General, for Petitioner:
The taxpayers who paid under protest have not complied with the provisions of section 7
of the act of 1913, creating the Nevada Tax Commission. The legislature is vested with the
sole power of providing the modes by which state and county taxes shall be levied, assessed
and collected. (Wells, Fargo & Co. v. Dayton, 11 Nev. 166.)
Courts will not countenance evasion of a revenue law. (Drexler v. Tyrrell, 15 Nev. 135.)
E. P. Carville, District Attorney of Elko County, for Respondent.
This is an original proceeding in mandamus. Petitioner, as controller of the State of
Nevada, seeks to compel the respondent, as county treasurer of Elko County, to settle with
petitioner for the state's portion of a certain sum of money collected by respondent, in his
official capacity, from various property owners in Elko County.
It is set forth in the petition that during the latter part of the year 1914 the respondent, as
county treasurer of Elko County, collected from various residents of Elko County the sum of
$71,620.97, as the first installment of taxes for the year 1914. It appears that this entire sum
was paid by the taxpayers of Elko County under protest, and because of such protest
respondent refuses to apportion the moneys received by him in his official capacity, and has
failed to settle with the state for its portion of the money thus collected.
Section 3748, Revised Laws of Nevada, prescribes that:
The county auditors of the several counties shall, on the first Monday of each month, mail
or express, prepaid, to the state controller, a statement of all state moneys in the
respective county treasuries and from what sources derived, and the treasurers of the
respective counties shall at all times hold themselves in readiness to settle and pay all
moneys in their hands belonging to the state, whenever required so to do by order signed
by the state controller and state treasurer, who are hereby authorized to draw such order
whenever they deem it necessary.
to the state controller, a statement of all state moneys in the respective county treasuries and
from what sources derived, and the treasurers of the respective counties shall at all times hold
themselves in readiness to settle and pay all moneys in their hands belonging to the state,
whenever required so to do by order signed by the state controller and state treasurer, who are
hereby authorized to draw such order whenever they deem it necessary. At the time the
treasurer of any county shall pay to the state treasurer moneys required to be paid by order of
the treasurer and controller, it shall be the duty of such county treasurer to deliver to the
controller, a statement showing the amount so paid, and all sources from which received, and
when received. The county treasurer shall, on the second Monday of June and December of
each year, settle in full with the state controller, and send, in such manner as he shall
designate, to the state treasurer, all funds which shall have come into his hands as county
treasurer for the use and benefit of the state, taking therefor a receipt from the state treasurer,
which receipt he shall cause to be filed with the controller. Before making payment, each
county treasurer shall transmit to the state controller, by mail or otherwise, prepaid, a report
from the county auditor, together with a duplicate thereof, stating specially the total amount
collected, and the amount due the state from each particular source of revenue, the original of
which shall be filed with the controller, who shall enter upon the same, and also upon the
duplicate, the cash paid to the state treasurer and the amount of the expenses allowed; and the
county treasurer shall thereafter file the duplicate report with the auditor of his county,
whereupon the auditor shall balance the treasurer's account; and it shall be the duty of the
auditor to furnish the county treasurer with the report, which such treasurer is required to
produce in making his settlement with the state.
It is admitted by respondent that the provisions of the foregoing section, in so far as a
settlement by him on the second Monday of December, 1914, and the second Monday of
June, 1915, is required, have not been complied with.
Monday of June, 1915, is required, have not been complied with. The district attorney of Elko
County, appearing for respondent, stipulated in open court that the proceedings be submitted
upon the petition of the state controller and the brief of the attorney-general, with which he
was in accord. We assume it is the position of respondent that, because the sum of money
paid to him in his official capacity of treasurer of Elko County was paid by the respective
taxpayers under protest, he cannot apportion the money, and hence cannot make settlement
with the state.
Section 7 of an act entitled An act in relation to the public revenues, creating the Nevada
Tax Commission, defining its powers and duties, and matters relating thereto, etc. (Stats.
1913, p. 175), provides:
Any property owner who has initiated a court proceeding for redress from any increased
valuation of his property for assessment purposes, and who shall have paid his December
installment of taxes thereon in full, may, on filing with the treasurer of the county a certificate
of the clerk of any court that such issue is pending, pay his June installment in two separate
payments, to wit: One payment in a sum which, when added to the December installment,
shall represent the amount of taxes payable if computed on the valuation of the preceding
fiscal year, plus the taxes on any improvements added since such preceding levy, and the
other for the balance required to make up the full June installment; and said county treasurer
shall receipt for the latter as a special deposit, to be held by such treasurer, undisbursed, until
the court by its finding shall award it; and said property owner, in such case, shall not be
liable for any penalty under the delinquent tax act; and if the court by its findings reduce the
assessment valuation of such property, said county treasurer, on order of the court, shall
refund from such special deposit an amount corresponding to such reduction, and shall
transfer the remainder to the public revenues, and if the court shall not reduce the valuation of
said property, then said county treasurer shall transfer the entire special deposit to the
public revenues."
county treasurer shall transfer the entire special deposit to the public revenues.
It is alleged in the petition, and not controverted or denied in any way, that, although the
sum of money in the hands of respondent as county treasurer was paid in to him by the
several taxpayers under protest, no action has been commenced by any of the protestant
taxpayers, or by any other person in the county of which respondent is county treasurer,
against the respondent or any officer having to do with the revenue system of the state, to
recover the amount or any part of any tax levied against property in Elko County; in other
words, it appears that while property owners of the county of Elko paid their 1914 taxes under
protest, no action was commenced by any of them in any court on account of excessive
valuation of their property.
It appears to us that by the provisions of the statute above set forth the steps to be taken by
any taxpayer who, believing himself aggrieved by the assessment of taxation, seeks to relieve
himself from such condition by access to the courts, are made plain and adequate. A mere
filing of a protest with the public official authorized to receive taxes will not redress the
wrong nor afford a remedy, unless the provisions of the statute enacted for such purpose be
carried out by the party protesting. As was stated by this court in the case of Wells, Fargo &
Co. v. Dayton, 11 Nev. 166:
The legislature is invested with the sole power of providing the modes by which state and
county taxes shall be levied, assessed, and collected, and it is essential that the modes
prescribed, if within constitutional limits, should be faithfully carried out by the officers to
whom is intrusted the duty of their enforcement.
Public officials, especially in the administration of that department of government having
to do with revenue, its collection and apportionment, have before them for their guidance
specific provisions found in legislative enactment. In the matter at bar, the duties of
respondent as to the apportionment of the money received by him from the respective
taxpayers of his county are set forth in the section quoted.
him from the respective taxpayers of his county are set forth in the section quoted. Unless
restrained or prevented by some order or process of court, or legally notified of an action
commenced, it would be the duty of such officials to carry out the provisions of the statute.
It is unnecessary for us to determine here as to the force or effect of a protest filed by a
taxpayer in the payment of his taxes. The process available to the protestant for redress being
set forth by the statute, it was one of which the protesting taxpayers in this instance might
avail themselves. No attempt having been made by the protesting taxpayers to set the
provisions of the statute in operation, no proceedings having been instituted to prevent the
officials receiving the taxes from disposing of the same through the avenues provided by law,
there was, in our judgment, no other course for respondent to pursue than that which the
statute prescribes as his duty, namely, to settle with petitioner as the representative of the
state.
The writ as prayed for should issue.
It is so ordered.
____________
38 Nev. 500, 500 (1915) Buehler v. Buehler
[No. 2173]
JOSEPH BUEHLER, Appellant, v. ALICE C. BUEHLER, Respondent.
[151 Pac. 44]
1. DivorceAppealDisposition of Cause.
On the appeal of a divorce action, the appellant cannot be required, under penalty of dismissal of the
appeal on refusal, to pay amounts awarded respondent in the judgment appealed from, since to compel
appellant to pay such amounts would be to nullify the purpose of the appeal.
2. DivorceSuit Money Pending Appeal.
On the appeal of a divorce action, the appellate court has power to make an allowance of suit money to
the wife for the purpose of appeal.
3. DivorceAppealSuit Money Pending Appeal.
On the husband's appeal from a judgment of divorce, where it appeared that he was a man of considerable
means, that all of his property was outside the state, and that after trial and before judgment he left the state
and cannot be located by respondent, who is without means, an order requiring appellant to pay a sufficient
sum to compensate respondent's attorney for appearing in her behalf will be made.
4. DivorceAppealSuit Money Pending Appeal.
On appeal from a judgment of divorce, attorney's fees pending appeal may be ordered to be paid by
appellant within a specified time on penalty of dismissal of the appeal.
Suit by Joseph Buehler against Alice C. Buehler. From a decree granting the defendant a
divorce on her cross-complaint, the plaintiff appeals, and pending appeal the defendant moves
for an order requiring plaintiff to pay attorney's fees and other sums. Motion granted in part.
Summerfield & Richards, for Appellant:
This court will not enforce a judgment which is appealed from before an opportunity has
been given appellant to be heard upon appeal, although counsel fees may be allowed, in the
discretion of the court, to enable respondent to carry on the proceedings in the appellate court.
(Lake v. Lake, 16 Nev. 363, 17 Nev. 230.)
A. E. Painter, for Respondent:
Any court, having jurisdiction of a divorce matter, has the right to require payment of
temporary alimony.
the right to require payment of temporary alimony. (Wilson v. Wilson, 2 Hag. Cons. Eng. 204;
McGee v. McGee, 10 Ga 478; Lake v. Lake, 16 Nev. 367, 17 Nev. 238.)
The supreme court may refuse to modify a decree for permanent alimony until the decree
for temporary alimony has been satisfied. (Nelson on Marriage and Divorce, vol. 2, sec. 861;
Maharry v. Maharry, 47 Pac. 1051.)
Proceedings on appeal will be dismissed where the defendant removes from the
jurisdiction of the court to defeat the enforcement of an order for alimony. (Bates v. Bates,
145 N. Y. Supp. 411; White v. White, 132 N. Y. Supp. 1043.)
Appellant brought suit against respondent in the district court of Washoe County for a
divorce. To the complaint the respondent filed an answer and cross-complaint, and upon the
trial a judgment and decree were entered in favor of respondent granting her a divorce.
Judgment was also rendered in her favor for a monthly allowance as permanent alimony in
the sum of $133.33, for $275 as attorney's fee, and in the further sum of $198.75 as costs.
Appellant has brought the case to this court by appeal.
The matter is now before the court upon the application of respondent for an order
requiring the appellant to pay the several sums for which judgment was rendered by the trial
court, which has been appealed from, and for an allowance as an attorney's fee for her defense
on the appeal. She also asks that the court fix a time within which said payments must be
made, and that, in default of making such payments, the appeal be dismissed. The court is not
asked to make an allowance to respondent as alimony pending this appeal.
[1-2] It is not contended by respondent that there is any statute authorizing the making of
the order asked for, but it is claimed that it is an inherent power of the court to make the
order. We are clearly of the opinion that we cannot make an order upon this application
requiring appellant to pay the several amounts awarded respondent in the judgment appealed
from. The appellant, having perfected his appeal from the judgment, is entitled to have the
judgment reviewed in the usual way, and for the court to undertake to compel appellant
to pay any portion of that judgment would be to nullify the very purpose of the appeal.
perfected his appeal from the judgment, is entitled to have the judgment reviewed in the usual
way, and for the court to undertake to compel appellant to pay any portion of that judgment
would be to nullify the very purpose of the appeal. But we are satisfied that the court has
power to make an allowance of suit money when asked for and when a proper showing is
made.
In Lake v. Lake, 16 Nev. 303, this court said:
No statutory provision authorizes an allowance for counsel fees in this court. But such
right has been exercised by courts of similar jurisdiction in conformity with the decisions of
the ecclesiastical courts of England. (Goldsmith v. Goldsmith, 6 Mich. 285; Phillips v.
Phillips, 27 Wis. 252.) The exercise of such authority is based upon the presumption that
jurisdiction in divorce cases carries with it by implication the incidental power to make such
allowances. The power is indispensable to the proper exercise of jurisdiction in guarding the
rights of wives.
The same question was before this court again in the case of Lake v. Lake, 17 Nev. 238, 30
Pac. 878, where the former ruling was adhered to.
There seems to be no doubt but that the practice in the ecclesiastical courts was to allow
alimony on appeal, pending the final determination of the case. (Loveden v. Loveden, 1
Phillim. 208.)
The authorities differ as to the power of an appellate court, to grant an order directing the
payment of temporary alimony and suit money upon an appeal in a divorce action. In some
jurisdictions such power is denied, but the weight of authority is in favor of an exercise of the
power. (14 Cyc. 745.)
In the case of Holcomb v. Holcomb, 49 Wash. 498, 95 Pac. 1092, where all of the
authorities taking both views are cited, it is held that the appellate court has power to make an
order as to the suit money pending appeal. We see no reason for not adhering to the rule
heretofore adopted by this court in the Lake case.
[3] It appears from the showing made upon the hearing of this matter that the appellant is a
man of considerable means, and that all of his property is without the State of Nevada;
and that immediately after the case was tried, and before judgment the appellant left this
state, and has never been heard from or located since by respondent, although diligent
effort has been made to find him.
means, and that all of his property is without the State of Nevada; and that immediately after
the case was tried, and before judgment the appellant left this state, and has never been heard
from or located since by respondent, although diligent effort has been made to find him. It
also appears that respondent is without means of support, has no assets upon which to raise
money to conduct her case on appeal, and has no way of earning her living. We are fully
satisfied that the facts of the case justify this court in making an order that appellant pay to
respondent, or her attorney, a sum sufficient to compensate the latter for appearing in her
behalf in the case pending in this court on appeal.
[4] We are also of the opinion that we may order such sum to be paid within a given time,
and if the order is not complied with the appeal may be dismissed. (Maharry v. Maharry, 5
Okl. 371, 47 Pac. 1051; Bennett v. Bennett, 16 Okl. 164, 83 pac. 550; Bennett v. Bennett, 15
Okl. 286, 81 Pac. 632, 70 L. R. A. 864; White v. White, 148 App. Div. 883, 132 N. Y. Supp.
1043; Casteel v. Casteel, 38 Ark. 477; Newhouse v. Newhouse, 14 Or. 290, 12 Pac. 422.)
At the time of the oral argument, counsel for appellant made a motion to strike from the
files the motion and notice of motion of respondent. We believe this practice tends to
confusion, and, so far as we are advised, is not approved by any court, but condemned by
many. (Wier v. Bradford, 1 Colo. 14; 28 Cyc. 15.)
It is the order of the court that appellant be, and he is hereby, directed to pay to the
respondent or her attorney of record, as an attorney's fee for her defense in this court, the sum
of $250, within thirty days from the service of a copy hereof upon his attorney.
A further order as to attorney's fees may be made by the court, should future developments
justify it.
Since no application was made for alimony pending the appeal, nor for suit money, no
order will be made as to them.
McCarran, J.: I concur in the order.
Order On Motion For Alimony Pendente Lite
Respondent's motion for an order granting alimony pendente lite came on regularly to be
heard this day (October 26, 1915) before the court. Respondent appeared by and through her
attorney, A. E. Painter, Esq., and the appellant by and through his attorneys, Messrs.
Summerfield & Richards. Said motion was heard, argued, submitted, and duly considered,
and, the court being fully advised in the premises
It Is Ordered, and the court does hereby order, that said motion be, and the same is hereby,
granted, and accordingly that appellant pay to the respondent, either through the clerk of this
court or through A. E. Painter, Esq., the attorney for respondent, the sum of two hundred
dollars ($200) per month, pending the appeal in this case, beginning from the date of this
order, and that the same be made on or before the 5th day of each and every month,
commencing on the 5th day of November, 1915; and that if appellant fails to make said
monthly payments as aforesaid, this court will entertain a motion to dismiss his appeal herein.
Order of Dismissal
Per Curiam:
It appearing to the court that heretofore, on the 26th day of October, 1915, an order was
duly made and entered by this court requiring appellant to pay to respondent the sum of $200
per month alimony pendent lite on or before the fifth day of each and every month thereafter
during the pendency of such appeal; and it appearing to this court that such order has not been
complied with and no satisfactory excuse offered for such noncompliance; and it further
appearing that on the 11th day of November, 1915, a notice of motion to dismiss the appeal
for noncompliance with such order was filed in this court and served on counsel for appellant,
which notice coming on to be heard upon the 15th day of November, 1915, was presented to
the court by counsel for respondent, counsel for appellant failing to appear and resist said
motion; and it appearing to the satisfaction of the court that appellant has not complied
and does not intend to comply with said order: therefore
and it appearing to the satisfaction of the court that appellant has not complied and does not
intend to comply with said order: therefore
It Is Ordered, that said appeal be and the same is hereby dismissed.
Dated December 6, 1915.
____________
38 Nev. 505, 505 (1915) State v. Wells, Fargo & Co.
[No. 2119]
STATE OF NEVADA, Respondent, v. WELLS, FARGO & CO.
[150 Pac. 836]
1. CommerceCorporationsInterference with Interstate Commerce.
The state may tax the intrastate business of a corporation engaged in intrastate and interstate commerce,
but may not tax the interstate business by levy of a tax on the gross receipts of the corporation.
2. TaxationCorporationsInterference with Interstate Commerce.
The property of an express company doing an interstate and an intrastate business is in character tangible
and intangible, and the property is subject to assessment and taxation, and the situs of the intangible
property is distributed where its tangible property is located and its work done.
3. TaxationProperty Subject to taxationConstitutional and Statutory
ProvisionsPersonal Property.
Const. art. 10 (as amended by stats. 1913, c. 83), requiring the legislature to provide by law for a
uniform and equal rate of assessment and taxation and exempt from taxation enumerated property, and
Rev. Laws, secs. 3621, 3622, declaring that all property shall be subject to taxation, except exempt
property, defining real estate, and declaring that the term personal property shall include all capital,
loaned, invested, or employed in trade, commerce, or business, the capital stock of corporations doing
business within the state, and all property not included in the term real estate, authorize and direct that all
property of every kind, character, and nature not specifically exempted shall be subject to taxation, and
authorize a tax on the intangible property of an express company engaged in interstate and intrastate
business.
4. TaxationAssessmentStatutory Provisions.
Where the statutes define the different species of property subject to taxation and provide that every
species shall be assessed at its actual cash value, but are silent as to the mode of ascertaining the cash
value, the revenue officers may assess the intangible property of an express company as
against the objection that the legislature has failed to adopt any rule governing the
manner of determining the value of the property.
the intangible property of an express company as against the objection that the legislature has failed to
adopt any rule governing the manner of determining the value of the property.
5. TaxationAssessmentStatutory ProvisionsDelegation of Power.
Rev. Laws, sec. 3797, requiring county assessors to meet annually and establish a valuation through the
state of property for taxation, when considered in connection with sections 3624, 3800, relating to the
assessment of property at its actual cash value, does not delegate legislative power to the assessors acting
collectively or severally in determining whether property is subject to taxation, but the only discretion
conferred on the board of assessors is to determine whether other kinds of property than those enumerated
by statute can be valued and assessed more uniformly by the board than by the county assessors acting
separately, and the tangible and intangible property of an express company may be assessed.
6. StatutesValidityPresumptions.
All doubts as to the validity of a statute must be resolved in favor of validity.
7. TaxationAssessmentNoticeStatutory Provisions.
Where a statute does not provide for notice of assessment of property for taxation, the giving of notice is
not essential to make an assessment valid.
8. EvidencePresumptions.
In the absence of a showing to the contrary, it will be presumed that assessing officers performed their
duty in making an assessment of property for taxation.
9. TaxationAssessmentDescription of PropertySufficiency.
The state board of assessors, at an annual meeting, fixed a mileage valuation on the property of an
express company doing intrastate and interstate business, after considering the fact that interstate business
was not subject to taxation. The county assessor, in assessing the property of the company, described it as
the right to carry express over railroad mileage operated by enumerated railroads, and stated that the
company operated its business on 140.14 miles of railroad at a valuation for the business of $300 per mile.
The company had furnished a statement of its property, and the county assessor sought to assess the
intangible property of the company. Held, that the assessment sufficiently described the property.
10. TaxationAssessmentOverassessmentsBurden of Proof.
Under Rev. Laws, sec. 3664, authorizing defendant, in an action for delinquent taxes, to show that the
assessment is out of proportion and above the actual cash value of the property assessed, defendant, in an
action for delinquent taxes, has the burden of establishing excessive valuation on his property.
11. TaxationAssessmentOverassessmentsBurden of Proof.
An express company was assessed at a mileage valuation of $300 per mile on 140.14 miles of railroad,
over which it transacted business in the state. The net operative earnings of the company were over
$3,000,000, which would be a 10 per cent net earnings on property of the value of over $30,000,000. The
operative mileage of the company was 65,474 miles, including nearly 15,000 miles of steamship lines.
Excluding from a capitalization of the net earnings on a 10 per cent basis the value of all the property of the
company outside the state used in its operative business, there would be net earnings of over $40 per mile
for the entire system, or a valuation of over $400 per mile for the system as a whole. Excluding the
steamship mileage, and assuming that 8 per cent was a fair interest on which to estimate the value of its
property, subject to assessment basis, a resulting valuation of over $750 per operative mile would be
shown. Held, that the assessment was not excessive, though the steamship mileage was not included.
12. TaxationAssessmentValidity.
Where the valuation of property for taxation was not excessive, the fact that an erroneous method was
used in good faith in determining the valuation was immaterial.
Appeal from Sixth Judicial District Court, Humboldt County; Edward A. Ducker, Judge.
Action by the State of Nevada against Wells, Fargo & Company for the recovery of taxes.
From a judgment for the state and an order denying motion for new trial, defendant appeals.
Affirmed.
Statement of Facts
This is an action to recover taxes assessed against the appellant in the county of Humboldt,
amounting to the sum of $694.53, which appellant permitted to go delinquent, together with
penalties for nonpayment and costs. From a judgment for the state and from an order denying
a motion for a new trial, defendant appeals.
The complaint alleged that for the year 1910, in the county of Humboldt, the assessor of
said county did duly assess and put down on an assessment roll all the real and personal
property in said county subject to taxation, which said assessment roll was thereafter
submitted to and duly equalized by the board of equalization.
That the defendant, appellant herein, was then and there the owner of, and there was
duly assessed to it, the following-described property: "That certain property belonging to
said Wells, Fargo & Company, to wit: The right to carry express and right to transact all
other business, then and there, and commonly done and transacted by the said Wells
Fargo & Company over the railroad mileage operated by the Southern Pacific Company, a
corporation, on that railroad track known as the Central Pacific Railroad passing through
said Humboldt County.
there the owner of, and there was duly assessed to it, the following-described property: That
certain property belonging to said Wells, Fargo & Company, to wit: The right to carry express
and right to transact all other business, then and there, and commonly done and transacted by
the said Wells Fargo & Company over the railroad mileage operated by the Southern Pacific
Company, a corporation, on that railroad track known as the Central Pacific Railroad passing
through said Humboldt County. * * * (Here follows description of line.) The railroad mileage
of the said Southern Pacific Company within the said county of Humboldt, on which the said
Wells, Fargo & Company operates its said express business is one hundred and forty and
fourteen one-hundredths (140.14) miles, at a valuation for the said business of three hundred
dollars ($300) per mile.
The answer denied that the property described in the complaint was within the county of
Humboldt, or that the same was subject to taxation; that the same was duly or at all assessed
to said defendant, or that taxes were duly levied thereon; that the assessment was made by the
county assessor of Humboldt County. The answer alleged that there is no law in the State of
Nevada authorizing such assessment; that the same is contrary to the constitution of the
United States in that it is an attempt to levy a tax for the right to engage in interstate
commerce.
For a further and separate answer and defense to the complaint, defendant alleged: That
the county assessor did not make the assessment, but that the same was made by the state
board of assessors in January, 1910; that the law under which the said state board of assessors
made the assessment is unconstitutional in that it is an attempt to delegate to said board the
power and duty of determining or ascertaining what property shall be assessed by it, and is an
attempted delegation of the taxing power; that the assessment and taxes described in the
complaint were made, levied, and imposed upon the right of defendant to conduct and
transact its interstate business; that said law as construed makes no distinction between
intrastate and interstate business and imposes a tax on the right to conduct interstate
business; that neither from the law nor the assessment can it be determined what portion
of the tax assessed is imposed on the right to transact intrastate business as
distinguished from interstate business; that the tax and assessment were made and
levied and were so intended to be made and levied upon the right of the defendant to do
both intrastate and interstate business; that the law does not provide for any notice to be
given to this defendant, nor give it any opportunity to appear and be heard at the time of
making said assessment, and defendant had no notice of the meeting of the board or of
the assessment, nor any opportunity to be heard.
as construed makes no distinction between intrastate and interstate business and imposes a
tax on the right to conduct interstate business; that neither from the law nor the assessment
can it be determined what portion of the tax assessed is imposed on the right to transact
intrastate business as distinguished from interstate business; that the tax and assessment were
made and levied and were so intended to be made and levied upon the right of the defendant
to do both intrastate and interstate business; that the law does not provide for any notice to be
given to this defendant, nor give it any opportunity to appear and be heard at the time of
making said assessment, and defendant had no notice of the meeting of the board or of the
assessment, nor any opportunity to be heard.
For a further answer and defense, defendant alleged:
That the total property owned by this defendant and situate in the State of Nevada and
used by this defendant in the transaction of its business in said state as a going concern,
exclusive of real property which is taxed as such, amounts, and that the total property so
owned and used by this defendant and situate in the county of Humboldt amounts, to and is
the sum of $383.98. That, if the said property so owned and used by this defendant and situate
in the county of Humboldt was taxed at the same rate and in the same manner as other
property situate in the county of Humboldt and owned by individuals and corporations other
than this defendant, the tax so levied and assessed would amount to and be the sum of $6.32.
That the total tax assessed against this corporation in the State of Nevada by the state board of
assessors in the month of January, 1910, and being the assessment referred to in the answer
herein and being the assessment under which the taxes herein sued for were levied, amount to
and exceed the sum of $10,000. That at said meeting of the board of assessors said board
assessed this defendant and valued the property used by this defendant at the rate or sum of
$300 for every mile of railroad over which this defendant transacted business, and
apportioned said assessment or tax to the various counties of the state in accordance
with the number of miles of such railroads so situated within said county, and that the tax
herein sued for was not otherwise levied or assessed.
and apportioned said assessment or tax to the various counties of the state in accordance with
the number of miles of such railroads so situated within said county, and that the tax herein
sued for was not otherwise levied or assessed. That said system of taxation so attempted to be
enforced against this defendant is confiscatory, and the property of this defendant is taken
without due process of law in this: That this defendant is assessed for taxes equaling in
amount the property owned by it in the State of Nevada, whereas all other property in the
State of Nevada is assessed at a much less rate, to wit, at the approximate rate of $2.25 for
each $100 of the assessed value of the property so owned by them, and as defendant is
informed and believes other property in the State of Nevada is assessed at 60 per cent of its
actual value. That the laws of the State of Nevada under which said taxes are purported to be
assessed and levied, and particularly the law referred to in the first, separate, and distinct
defense herein, are null and void in that they conflict with and violate the constitution of the
State of Nevada, and particularly section 20 [article 4] thereof, wherein it is provided that the
legislature shall enact no special or local laws for the assessment and collection of taxes for
state, county, and township purposes, and that said laws are further null and void in that they
conflict with and violate the constitution of the United States and particularly the fourteenth
amendment to said constitution, wherein it is provided that no state shall deprive any person
of life, liberty, or property, without due process of law, nor deny to any person with its
jurisdiction the equal protection of the laws.
Plaintiff, in reply to defendant's answer, denied that the tax or assessment was made by any
other person or body than the assessor of Humboldt County, or that the tax or assessment is
an attempt to levy a tax upon the right of defendant in engaging in interstate commerce, or is
a tax on such commerce, or is a tax other than on the property of the defendant described in
the complaint, or that defendant was given no notice or opportunity to be heard at the time
of the action of the state board of assessors or of the board of equalization of Humboldt
County, or that the total property owned by the defendant within the State of Nevada and
used by the defendant in the transaction of its business in said state does not exceed the
value of $11,373.67, and alleges the fact to be that the value of the property so owned
and used by defendant in Humboldt County is the sum specified in the complaint; denies
that the tax sued for was not otherwise levied or assessed than at the meeting of the
state board of assessors, and alleges the fact to be that the tax was levied and assessed
as set forth in the complaint; denies that the said tax is confiscatory or is assessed for
taxes equaling the amount of property owned by it in the State of Nevada, or that the tax
so assessed is in any way different or not uniform with the taxes levied and assessed
against other property within the state.
be heard at the time of the action of the state board of assessors or of the board of
equalization of Humboldt County, or that the total property owned by the defendant within
the State of Nevada and used by the defendant in the transaction of its business in said state
does not exceed the value of $11,373.67, and alleges the fact to be that the value of the
property so owned and used by defendant in Humboldt County is the sum specified in the
complaint; denies that the tax sued for was not otherwise levied or assessed than at the
meeting of the state board of assessors, and alleges the fact to be that the tax was levied and
assessed as set forth in the complaint; denies that the said tax is confiscatory or is assessed for
taxes equaling the amount of property owned by it in the State of Nevada, or that the tax so
assessed is in any way different or not uniform with the taxes levied and assessed against
other property within the state.
At the trial, and prior to taking testimony, the following colloquy occurred between
counsel, relative to the pleadings:
Mr. CallahanIt is not the intention of the plaintiff to deny that the state board of
assessors, at their meeting of January, 1910, placed a valuation upon this property of $300 per
mile; it is the intention of the plaintiff to admit that fact. And it is the intention of the plaintiff
to admit that the assessor of Humboldt County accepted that figure as the value of the
property belonging to the defendant company.
Mr. GibbonsIn other words, you confirmed, ratified, and approved the action of the
state board of assessors.
Mr. CallahanNo, sir, not exactly that. But that the county assessor then, after that
action was taken by the state board of assessors, did every act necessary for him to do in
assessing the property. That will be our position. I simply wish to make this comment here
upon a portion of this reply, as the reply here seems to deny that any other person excepting
the county assessor made the assessment. We will contend that the county assessor did in fact
make the assessment, but we are not going to deny that the state board of assessors that
met in January did also place a valuation upon the defendant's property.
did in fact make the assessment, but we are not going to deny that the state board of assessors
that met in January did also place a valuation upon the defendant's property.
Mr. Baker* * * The position that the state takes in this case, is that the valuation upon
the Wells-Fargo property in the state was placed by the state board of assessors, and that the
assessors of each county are bound by that valuation, and cannot change it. That it is the duty
of the assessors to assess the property, that the assessor shall assess and enter its true number
on the instrument, carrying out and placing that valuation upon the property, and they have
done so, but that the state board of assessors did place a uniform valuation on the property,
and in that sense it assessed the property.
Mr. GibbonsIn other words, the state board of assessors placed the valuation upon the
property, and under the law the county assessors cannot change that valuation, but that the
county assessor performs the ministerial act of making that assessment of fact, and entering it
upon his books.
Mr. CallahanAnd also by assessing it, in the same manner in which real property is
assessed, and he goes through the same channel as he does in assessing other property.
Counsel for the state thereupon offered in evidence the delinquent tax list for Humboldt
County for the year 1910, the property assessed, as described in such list and appearing on the
assessment roll, being described as set forth in the complaint, supra.
After calling the county assessor of Humboldt County and showing that he made the
assessment, plaintiff rested.
Counsel for the defendant called as a witness Mr. J. F. Shaughnessy, member of the board
of railroad commissioners for the State of Nevada, who testified, among other things, to the
following:
That as such commissioner, during January of the year 1910, I furnished to the state board
of assessors a statement relative to the business or taxes of Wells, Fargo & Co.
Thereupon, counsel for defendant offered in evidence a copy of the minutes of the meeting
of the state board of assessors held at Carson City January 10-15, 1910, which were admitted
without objection. The statement, prepared by the witness and furnished by the railroad
commission to the state board of assessors, as the same appears form the minutes, reads as
follows:
WELLS, FARGO & COMPANY
For the Year Ending June 30, 1909
Capitalization..................................................................................................
$8,000,000.00
Dividend paid during the year, 10 per cent......................................................
800,000.00
Funded debt......................................................................................................
None
Gross revenue from operation..........................................................................
$24,476,432.37
Express privileges (paid to railroads)..............................................................
11,416,199.60

______________

Operating revenue............................................................................................
$13,060,232.77
Operating expenses..........................................................................................
9,664,933.85

______________

Net express revenue........................................................................................
$3,395,298.92
Taxes (system as a whole)................................................................................
132,820.04

______________

$3,262,478.88
Other income....................................................................................................
1,401,900.46

______________

Total income after paying taxes......................................................................
$4,664,379.34
Dividends........................................................................................................
800,000.00

______________

Net income, carried to surplus..........................................................................
$3,864,379.34

______________

Total surplus accumulated and on hand
June 30, 1909..................................................................................................
$24,455,417.51
The gross earnings of Wells, Fargo & Company for the State of Nevada, as
reported to the Railroad Commission for the calendar year ending
December 31, 1908, was........................................................................
$850,000.00
Taxes paid to the State of Nevada, as reported to the Railroad
Commission, was....................................................................................
$2,657.74
Comparing the Wells-Fargo Express Company as a revenue producer and a taxpayer,
attention may be directed to the fact that the Tonopah and Goldfield Railroad, which is a
Nevada corporation, with gross earnings for the past year of $910,000, paid toward the
maintenance of the county and state governments in taxes $45,850.66, while by contrast it
may be noted that the Wells-Fargo Express Company, with gross earnings of $850,000, only
paid in taxes $2,657.74.
Further contrast in taxes may be shown by taking the Virginia and Truckee Railway with
gross earnings of only $295,000, and it is noted that they paid in taxes for the past year
$16,366, while the Wells-Fargo Express Company, with gross earnings of $S50,000, only
paid in taxes $2,657.74.
Virginia and Truckee Railway with gross earnings of only $295,000, and it is noted that they
paid in taxes for the past year $16,366, while the Wells-Fargo Express Company, with gross
earnings of $850,000, only paid in taxes $2,657.74.
It has been suggested by your chairman that a per mile valuation should be assessed
against this company in order that the various counties and the state may receive their just
proportion of taxes.
To find the valuation the 4 per cent of gross earnings basis may be used, or net earnings
may be capitalized on a basis of 7 per cent. The net earnings as reported to the commission
are $291,084.85, and this amount is 7 per cent on $4,000,000, which could fairly be taken as
the value of express company's property, real, personal, and intangible, franchises, etc., within
the State of Nevada. Applying 40 per cent of this valuation the same as other property is
assessed in Nevada, we have a valuation of $1,600,000 for the purpose of taxation within this
state. This company is operating within the state 1,890 miles of rail and stage line, and this
would make an assessed valuation of $847 per mile.
Assuming that an average levy of 2 per cent was applied it would produce $16.94 per
mile, or a total of approximately $32,000 in gross taxes to the state and counties.
If the 4 per cent of gross earnings basis is used, it may be noted that this will produce
$34,000 in taxes for state and counties.
The railroad express mileage of the Wells-Fargo Express Company in the state is
approximately 1,700 miles and the stage-line mileage is 200 miles.
If it is found expedient to eliminate the stage mileage and place an assessment valuation
of $500 per mile on the 1,700 miles of railroad express mileage, it will make an assessed
valuation of the express company's taxable property, tangible and intangible, of $850,000,
and assuming that an average levy of 2 per cent was applied, it would produce a tax of $10
per mile, or $17,000 in gross taxes for the state and counties."
would produce a tax of $10 per mile, or $17,000 in gross taxes for the state and counties.
The minutes of the board of assessors relative to the question of the assessment of Wells,
Fargo & Co. are quite lengthy, and only such extracts are here set out as will show clearly the
action of the board. It appears from the minutes that, on the preceding day, Judge H. F.
Bartine, the chairman of the railroad commission, had read to the board of assessors the
decision of the Supreme Court of the United States in Adams Express Co. v. Ohio, 166 U. S.
185, 17 Sup. Ct. 604, 41 L. Ed. 965, a copy of which decision is set out in full in the minutes
of the meeting. We quote from the minutes the following:
Judge Bartine* * * Let me suggest further that in this Ohio case, which I read, the
entire property of the express company was included by the supreme court to make it
$16,000,000$4,000,000 tangible and $12,000,000 consisting of the business they were
doing. They were all lumped together. So if you fix a valuation of $300 per mile, that would
include all the utilities they use in the transaction of their business, and not tax them
separately.
Mr. OwensMr. Chairman, I move that a valuation of $300 be placed against Wells,
Fargo & Co., for all the railroad mileage they have in the State of Nevada.
Mr. McBurneyI second the motion.
Mr. MilesMr. Chairman, in this case, if it is levied on mileage only, and not on horses,
wagons, offices, office furniture, etc., the question is now as to whether or not the assessor, in
including those items of property, could seize and sell such property for the taxes, provided
there was enough of that kind in the county.
Judge BartineI don't think there is any question about it at all as long as $300 per mile
is placed as the valuation of their property. The supreme court has said that it is just to take
aggregate mileage as the basis in order to find out what the rate of taxes should be. If you
make the total tax $300 per mile in your county, that includes the offices, office furniture,
safe and wagons and horses, because they cannot do the business without these things,
and, when you levy the tax of $300 per mile, that is the entire tax to be levied upon that
company.
includes the offices, office furniture, safe and wagons and horses, because they cannot do the
business without these things, and, when you levy the tax of $300 per mile, that is the entire
tax to be levied upon that company.
Mr. OwensI will include that in my motion. I would like to know for the information of
the board, after listening to the statement by Judge Bartine, if the various buildings are not
included in that intangible property? * * *
The clerk called the roll, and the motion to place a valuation of $300 per mile on Wells,
Fargo & Company was unanimously carried.
From the examination of the witness, Shaughnessy, we quote the following:
Q. In other words, Mr. Shaughnessy, in order to arrive at the sum of $850,000, you took
the aggregate of the sums of money received in the different stations in Nevada from
intrastate business, and added to that the moneys received from interstate business, on
business coming from other states into the State of Nevada, and also added to that, and to
those sums the moneys received from interstate business forwarded from Nevada to other
states and countries, and adding those three sums together you arrived at the sum of
$850,000. A. That is correctyes, sir. * * *
Q. How did you arrive at the sum of two hundred and ninety-one odd thousand dollars
mentioned on page 117 of the defendant's exhibit 1? A. The statement as made on page 117,
the net earnings as reported to the commission are $291,084.85 That adding and calculation
there explains the method of arriving at that. We have on file in our office as reported by the
Wells, Fargo & Co., and also by the railroad company, copies of all of the contracts of the
division of the gross charge as express traffic, comprising the amount that the express
company shall pay to the railroad for privilege for its transportation, for the transportation of
the express business, and that charge will average for transportation known as the railroad
privilege about 50 per cent of the express charges. * * *
Q. And the basis of taxation upon the net profits of two hundred and ninety-one odd
thousand dollars, or the gross profits of eight hundred and fifty odd thousand dollars, was not
figured out upon the basis of the mileage in the State of Nevada, to the entire mileage? A. No.
Q. Through which the Wells, Fargo & Co. operates? A. No, sir; it was not.
Q. And there was no attempt made by you, or by the board of assessors, to proportion the
amount of business done within the State of Nevada, in the same proportion as the mileage
within the State of Nevada bore to the entire mileage over which Wells, Fargo & Co.
conducts its business? A. No.
Q. And the tax was not levied upon any such basis, nor was the assessment placed upon
any such basis? A. No, it was not. * * *
Q. Then, as I understand your testimony, the earnings of the Wells, Fargo & Co. on
business that was carried from the State of Nevada into other states, and from other states into
the State of Nevada, was taken into consideration and made a part of the amount, which was
reported by you to be the earnings of the Wells-Fargo Company? A. Yes, sir, there was an
inclusion of the interstate earnings in that report. * * *
Mr. GibbonsQ. Do you know of any other reason than the reasons set forth in the
minutes of the meeting of the state board of assessors in 1910, why this taxation was placed
in the form of a mileage tax? A. With the idea in view that it would more nearly reach the fair
value of the property, and make a better distribution of it, and a better equalization than the
previous system. * * *
Q. Do you know what the gross intrastate earnings for the year 1910 were? A. Yes, sir, I
think I have that. The gross intrastate earnings in Nevada for the year 1910that is the year
and for the year ending June 30, 1910were $79,550.40.
Q. You do not know that the net intrastate earnings of Wells, Fargo & Co., for the year
1910 were $6,225.61? A. No, sir; I did not.
Q. Do you know what the aggregate tax so assessed by the state board of assessors for
the year 1910 against Wells, Fargo & Co. amounted to throughout the state, and state and
county taxes? A. Yes, sir; I have figured that. I think it would aggregate about $11,000.*
* *
by the state board of assessors for the year 1910 against Wells, Fargo & Co. amounted to
throughout the state, and state and county taxes? A. Yes, sir; I have figured that. I think it
would aggregate about $11,000.* * *
Q. Did you, in making up this report to the state board of assessors, in any way consider
the franchiseto tax the franchise? A. No, sir; we considered the property, tangible and
intangible.
The report of the Wells-Fargo Company to the railroad commission of the State of
Nevada, ending June 30, 1908, referred to in the testimony of Mr. Shaughnessy, was offered
in evidence by the defendant. This report, in addition to the figures included in the statement
furnished by the railroad commission to the state board of assessors, shows the following
with reference to the receipts of the company from the business transacted within the State of
Nevada:
Total receipts from intrastate business......................................................................$124,794.12
Total receipts from business originating at points outside the state and received
at points within the state............................................................$583,485.97
Total receipts from business originating within the state and forwarded to point
outside the state.......................................................................... $141,905.69
Office expenses within the state................................................................................$134,007.99
The report also shows that the receipts from operation for the year 1908 were
$24,490,699.06, and the total net operating revenue was $3,115,025.66. The company had an
income from other sources of $1,138,891.59. The report shows net corporate income from all
sources to have been $4,180,615.74. The report also contains the following reference to the
operative mileage of the company:
Total Mileage OperatedEntire System
Steam railroads....................................................................................................48,576.04 miles
Electric railroads......................................................................................................1,180.11
miles
32.12 miles
Steamboat lines........................................................................................................ 336.65 miles
Ocean steamers....................................................................................................14,449.00 miles

__________

.5,473.92 miles
Relative to the report of the appellant corporation for the year 1908, the following appears
in the testimony of the witness, Shaughnessy:
Q. Do you know of any reason why the earnings of the Wells-Fargo Company for the
year 190S should have been taken as a basis for taxing them in the year 1910? A. No, the
only reason that it was taken was that that was the only data we had; there was no other
data available at that time.
the Wells-Fargo Company for the year 1908 should have been taken as a basis for taxing
them in the year 1910? A. No, the only reason that it was taken was that that was the only
data we had; there was no other data available at that time.
Q. Well, it would be a fair assumption would it notthat is, in your opinion it was a fair
assumption that their business would probably be about the same in 1910 as it would be and
was in 1908? A. Yes, we figured that way.
Q. It would not vary much? A. Yes, sir; we figured that it would run substantially the
same.
Q. And you have no other data at hand? A. That was the last official report we had before
us.
E. E. McMichael, division superintendent of the defendant corporation, was called as
witness for defendant and testified that he did not know of any officers or agents of the
defendant corporation being present at the meeting of the state board of assessors in January,
1910; that the defendant did not, to his knowledge, receive any notice that the state board of
assessors would at that time place any valuation upon any of its property; that he had
examined the records of the company to ascertain if knowledge of the notice had been
received, and that none could be found; that the value of the tangible personal property of the
defendant company in the county of Humboldt was $383.98; that the total tangible property in
the State of Nevada was $11,374.67.
Y. C. Lawsan, witness for the defendant, testified that he was at the time special
representative of the company in San Francisco, and for some time prior thereto had been
assistant auditor of the company. The witness identified the following statement, which was
admitted in evidence:
Statement of Wells, Fargo & Company's Operations
Within the State of Nevada for the Year 1910
Receipts from express operationsintrastate.............................................................. $76,342.18
Express privilegesrailroads and stages..........................................................................
34,810.74
Taxes and licenses..............................................................................................................
2,543.26
Operating expenses............................................................................................................
32,762.57

______

[In pencil]....................................................................................................................$70,116.57
$6,225.61 The witness testified that the value of the property of the company outside the
State of Nevada used in the business of the company, exclusive of real estate, was
$4,251,939.16.
The witness testified that the value of the property of the company outside the State of
Nevada used in the business of the company, exclusive of real estate, was $4,251,939.16.
L. A. Gibbons and Hoyt, Gibbons & French, for Appellant:
The power to tax is the power to destroy. The tax attempted is a tax upon the right to do
interstate business. This is forbidden by the constitution of the United States and by the
constitution and law of Nevada. (Adams Express Co. v. Ohio State Auditor, 166 U. S. 171,
218.)
Irrespective of the question of interstate commerce, the rule has been long settled in
Nevada that the property of the carrier can be legally assessed below its necessary cost when
it is shown that it is worth less than such necessary cost, but that it cannot be assessed by
adding anything to such necessary cost, for that would include its franchise, or monopoly, or
something of that sort. (State v. C. P. R. R. Co., 10 Nev. 47, 74; State v. V. & T. R. R. Co.,
46 Pac. 723, 724.)
The attempted assessment is not in accordance with section 1 of article 10 of the state
constitution, which provides for the equal distribution of the burdens of taxation. (State v.
Eastabrook, 3 Nev. 178; Sawyer v. Dooley, 21 Nev. 391; Cummings v. National Bank, 101 U.
S. 153; Exchange Bank v. Hines, 3 Ohio St. 15.)
There was no statutory authority for the assessment. An express legislative enactment is a
prerequisite to such an assessment. (Fargo v. Hart, 193 U. S. 490; G. H. & S. A. Ry. v. Texas,
210 U. S. 217; Postal Tel. v. Adams, 155 U. S. 688; Hager v. Am. Surety Co., 121 Ky. 791;
Central Pacific v. Evans, 111 Fed. 71; Pullman Co. v. Tamble, 207 Fed. 35; Mayer v.
Baltimore & O. R. Co., 127 U. S. 117.)
The assessment is fraudulent, aside from any question of fraudulent intent on the part of
the assessors. (C. B. & Q. v. Commissioners, 54 Kan. 781; Board v. Bullard, 77 Kan. 357;
Bank v. Commissioners, 83 Kan. 376; Royal Salt Co. v.
Co. v. Commissioners, 82 Kan. 203; Cummings v. Bank, 101 U. S. 153; Bank v. Hines, 3
Ohio St. 15.)
Courts will give relief where the action of the taxing authorities is so oppressive,
arbitrary, and capricious as to amount to fraud, whether intended or not. (Royal Salt Co. v.
Board, 82 Kan. 203, 107 Pac. 640.)
If the attempted assessment be sustained, there is no limit to which an assessing state may
go in the taxing of interstate commerce. (Gloucester Ferry v. Pennsylvania, 114 U. S. 196,
205.)
The statute under which the state board of assessors assumed to act does not authorize the
taxation of express companies, and is unconstitutional in so far as it attempts to confer power
upon the board to tax any other property than that mentioned therein. (Rev. Laws, sec. 3797;
State v. Mayor of Des Moines, 103 Iowa, 76; People v. Common Council, 28 Mich. 228;
Cooley on Taxation, 3d ed. vol. 1, pp. 102, 103; Cooley on Const. Lim. 5th ed. p. 139.)
Legislative bodies cannot delegate their powers in matters of taxation. (Thompson v.
Schermerhorn, 6 N. Y. 92; Gave v. Graham, 57 Ill. 144; Board v. Houston, 71 Ill. 318; State
v. Fisk, 9 R. I. 94; State v. City of Paterson, 34 N. J. Law, 167; Parks v. Board, 61 Fed. 436,
439; James v. U. S. Fidelity Co., 133 Ky. 299, 304; Central Pacific Ry. v. Evans, 111 Fed.
71; O'Neill v. American Fire I. Co., 26 L. R. A. 715; Anderson v. Manchester Fire I. Co., 28
L. R. A. 609.)
The board might value some property, and the assessors, acting separately, other classes of
property. (Sawyer v. Dooley, 21 Nev. 390.)
Under the constitution, when taxes are laid they must be imposed by the legislature in an
equal uniform manner, and at a just valuation. A board or individuals cannot be empowered
by the legislature to say whether or not certain property shall be taxed or remain untaxed.
(Barto v. Himrod, 8 N. Y. 483, 59 Am. Dec. 546; Reelfoot v. Dawson, 34 L. R. A. 731; Gray
on Lim. of Taxing Power, secs. 539-544; Shaezlin v. Cabiness, 135 Cal. 466, 56 L. R. A.
733; State v. State Board of Examiners, 104 Pac. 1055; Noel v. People, 1S7 Ill.
People, 187 Ill. 587, 52 L. R. A. 287; Ruggles v. Collier, 43 Mo. 353; Dowling v. Lancashire
Ins. Co., 31 L. R. A. 112, 115; State v. Budge, 105 N. W. 724, 726, 727; In Re Municipal
Charters, 62 Atl. 307, 308; State v. Great Northern Ry. Co., 10 L. R. A. 251; Inhabitants v.
Allen, 39 Atl. 716, 719.)
The state may tax the property of appellant located and having its situs for taxation within
the state, and a proper proportion of the property of appellant, if by statute an orderly and
legitimate method is provided for determining upon a fair and reasonable basis the proportion
of such property which may become subject to taxation within the state. (Pullman Co. v. Pa.,
141 U. S. 18; Fargo v. Hart, 193 U. S. 490; Western Union T. Co. v. Kansas, 216 U. S. 1;
Pullman v. Kansas, 216 U. S. 1, 56; Postal Tel. Co. v. Adams, 155 U. S. 688.)
The assessment and tax constitute an unlawful encroachment upon the exclusive power of
the federal government to regulate interstate commerce, and is a tax on property outside the
state. The earnings from interstate commerce cannot be taxed, nor can the privilege of
carrying on interstate commerce be taxed, nor can such a burden be put upon the property or
business within the state as will amount either to a tax upon interstate commerce or a tax on
property beyond the limits of the state. (State Freight Tax, 15 Wall. 232; Fargo v. Michigan,
121 U. S. 230; Phila. S. Co. v. Penn., 122 U. S. 324; Gloucester Ferry Co. v. Penn., 114 U.
S. 196; Ratterman v. Western Union T. Co., 127 U. S. 411; Western Union T. Co. v. Penn.,
128 U. S. 39; Leloup v. Port of Mobile, 127 U. S. 640; Lyng v. Mich., 135 U. S. 161; G. H. &
S. A. Ry. Co. v. Texas, 210 U. S. 217; Leo Meyer v. Wells, Fargo & Co., 223 U. S. 298;
Western Union T. Co. v. Kansas, 216 U. S. 1; Pullman Co. v. Kansas, 216 U. S. 56; A. T. &
S. F. Ry. v. O'Connor, 223 U. S. 280; Cox v. Collector, 12 Wall. 204; Tel. Co. v. Texas, 105
U. S. 460; Western Union Co. v. Alabama, 132 U. S. 47.)
A license tax based upon the total capital of a corporation without just relation to the
proportion which the capital used in the state bears to the whole capital is
unconstitutional and void.
without just relation to the proportion which the capital used in the state bears to the whole
capital is unconstitutional and void. (Mulford Company v. Curry, 44 Cal. 80.)
Where a statutory commutation or substituted method of taxation is provided for a
particular property or business, the question of the equality of taxation is always present, and
the substituted method must be a fair equivalent for a tax on the property, considering its
value. (Postal Tel. Co. v. Adams, 155 U. S. 686, 696; U. S. Express Co. v. Minnesota, 223 U.
S. 335; Ashley v. Ryan, 153 U. S. 436, 440.)
The tax is void because no notice was given to the defendant, and opportunity was denied
the defendant to have it equalized. (Cooley on Taxation, p. 624.)
Constitutional authority and legislative sanction are prerequisites to the imposition of a
privilege tax, and the legislature must in unmistakable terms limit the incidence of tax to
intrastate commerce, and must as clearly exclude from its operation interstate and foreign
commerce. (State v. Northern Express Co., 141 Pac. 757.)
Geo. B. Thatcher, Attorney-General, and J. A. Callahan, District Attorney, for
Respondent:
The receipt in evidence of the delinquent list, certified and corrected, was prima facie
proof that all forms of law in relation to the assessment and levy had been complied with.
(Rev. Laws, sec. 3658; State v. N. C. R. R. Co., 26 Nev. 358.)
All property, of whatever kind and nature in the state, is subject to taxation. (Rev. Laws, sec.
3621; Const. Nev. sec. 2, art. 8; Sawyer v. Dooley, 21 Nev. 391.)
The property of appellant assessed by the county assessor of Humboldt County was within
Humboldt County, and taxable therein. (Adams Express Co. v. Ohio State Auditor, 165 U. S.
194, 60 L. R. A. 641.)
The tax sued for does not violate the United States constitution, the trial court did not err
in sustaining the assessment and tax, and the same was not an unlawful burden on interstate
commerce.
burden on interstate commerce. Such a tax is not a burden so long as it is essentially a tax on
property only. (Adams Express Co. v. Indiana, 165 U. S. 255; Adams Express Co. v. Ohio
State Auditor, 165 U. S. 194; State v. Candy Cattle Car Co., 85 Minn. 460, 89 N. W. 66;
Union R. T. Co. v. Lynch, 18 Utah, 392, 48 L. R. A. 794, 55 Pac. 639.)
An express company is not denied the equal protection of the laws by classifying it with
telegraph and railroad companies as subject to the unit rate of taxation, which estimates the
value of the whole plant, though situated in different states, as an entirety for the purpose of
determining the value of the property in one state. (Adams Express Co. v. Ohio State Auditor,
supra; Adams Express Co. v. Indiana, 165 U. S. 255; Henderson Bridge Co. v. Kentucky, 166
U. S. 156; Adams Express Co. v. Kentucky, 166 U. S. 171; Amer. Sugar R. Co. v. Louisiana,
179 U. S. 95; C. P. R. R. Co. v. Evans, 111 Fed. 77; Michigan Railway Tax Cases, 138 Fed.
233; Kingsley v. Merrill, 67 L. R. A. 206, 99 N. W. 1044.)
The property of an express company distributed through different states constitutes a
single plant, united in a single specific use, so that for the taxation of that portion of it which
is within any state the contract for transportation facilities, and the capital necessary to carry
on the business, whether represented in tangible or intangible property, may be included in
the assessment. (Adams Express Co. v. Ohio State Auditor, supra; New York v. Roberts, 171
U. S. 655; Spreckels S. R. Co. v. McLain, 192 U. S. 414; Wells, Fargo & Co. v. Crawford, 63
Ark. 588, 37 L. R. A. 375.)
The situs of intangible property of an express company engaged in interstate business is
not for the purpose of taxation simply where its home office is, but such property is
distributed wherever its tangible property is located and its work done. (Adams Express Co. v.
Ohio State Auditor, 166 U. S. 185.)
Wherever separate articles of tangible property are joined, not simply by a unity of
ownership, but in a unity of use, there is not infrequently developed a property, intangible
though it may be, which in value exceeds the aggregate of the value of the separate
property.
of use, there is not infrequently developed a property, intangible though it may be, which in
value exceeds the aggregate of the value of the separate property. (Adams Express Co. v.
Ohio State Auditor, supra.)
The franchise to do is a combination of franchises embracing all things which a
corporation is given power to do, and this power constitutes a substantial matter of taxation in
every state in which such franchises are assessed in connection with tangible property.
(Adams Express Company v. Ohio State Auditor, supra.)
When the value of a thing proper to be taxed cannot be ascertained by ordinary methods,
its use may be referred to. (Adams Express Co. v. Ohio State Auditor, supra.)
Whatever property is worth for the purpose of income and sale, it is also worth for the
purpose of taxation. (Adams Express Co. v. Ohio State Auditor, supra; State v. V. & T. R. R.
Co., 46 Pac. 724.)
The statutes governing the assessment and taxation of property are not unconstitutional as
delegating the taxing power. (Sawyer v. Dooley, 21 Nev. 390.)
The assessment and tax are not void because no notice was given the appellant, the acts
required of officers between the assessment and the commencement of suit being directory
merely. (37 Cyc. 1019; State v. Sadler, 21 Nev. 13.)
The court did not err in refusing to confine the assessment to the tangible property of
appellant. (Rev. Laws, sec. 3621; Adams Express Co. v. Ohio State Auditor, supra; State v.
V. & T. R. R. Co., 46 Pac. 724.)
By the Court, Norcross, C. J. (after stating the facts):
Section 52 of the general revenue act (Rev. Laws, sec. 3664) provides what defenses may
be set up in an action for delinquent taxes. The section reads:
The defendant may answer, which answer shall be verified: * * * FifthFraud in the
assessment, or in failing to comply with the provisions of this act; or that the assessment is
out of proportion to and above the actual cash value of the property assessed; provided,
however, that in such last-mentioned case, where the defense is based upon the ground
that the assessment is above the value of the property, the defense shall only be effectual
as to the proportion of the tax based upon such excess of valuation, but in no such case
shall an entire assessment be declared void."
cash value of the property assessed; provided, however, that in such last-mentioned case,
where the defense is based upon the ground that the assessment is above the value of the
property, the defense shall only be effectual as to the proportion of the tax based upon such
excess of valuation, but in no such case shall an entire assessment be declared void.
We will assume that the defense interposed (that the tax sought to be recovered in this case
is in effect an attempt to impose a tax on interstate commerce and for that reason void) is a
legitimate defense to the action.
Three main questions are presented for determination:
FirstIs the tax sought to be recovered in whole or in part a tax on interstate commerce?
SecondIf not a tax on interstate commerce, but upon property of the appellant
corporation within the state, was the assessment made in accordance with law?
ThirdIf property subject to taxation has been regularly assessed, is the assessment out of
proportion to and above the actual cash value of the property?
[1-2] The law relative to taxation of express companies doing both intrastate and interstate
business is stated in 7 Cyc. 479, as follows:
The state may tax the intrastate business of express companies, but a state may not tax the
interstate business, either by a levy on the gross receipts of an express company from its
interstate business, or by a tax worded to cover companies doing interstate business only, but
may tax the property of an express company engaged in interstate business, and may fix the
value of such property, either by reference to the whole capital or the gross earnings of the
company, or by taxing its intangible property in proportion to mileage in the state compared
with total mileage.
The case does not present a question of a license or excise tax, and we shall not consider at
length authorities dealing with laws, where such taxes have been opposed or have been
attempted to be imposed upon express companies. Suffice it to say that, where such a tax has
been held to be a tax on interstate commerce or the right to engage in interstate
commerce, it has been held violative of the constitution of the United States and void.
tax has been held to be a tax on interstate commerce or the right to engage in interstate
commerce, it has been held violative of the constitution of the United States and void. See
Ohio Tax Cases, 232 U. S. 576, 34 Sup. Ct. 372, 58 L. Ed. 737; State v. Northern Express
Co., 80 Wash. 309, 141 Pac. 757.
It was held by the Supreme Court of the United States in Adams Express Co. v. Ohio State
Auditor, 165 U. S. 194, 17 Sup. Ct. 305, 41 L. Ed. 683, and same case, 166 U. S. 185, 16
Sup. Ct. 604, 41 L. Ed. 965 (quoting from the syllabus, 166 U. S.), that:
It is well settled that no state can interfere with interstate commerce through the
imposition of a tax which is, in effect, a tax for the privilege of transacting such commerce;
and also that such restriction upon the power of a state does not in the least degree abridge its
right to tax at their full value all the instrumentalities used for such commerce. The state
statutes imposing taxes upon express companies which form the subject of these suits grant
no privilege of doing an express business, and contemplate only the assessment and levy of
taxes upon the properties of the respective companies situated within the respective states. In
the complex civilization of today a large portion of the wealth of a community consists of
intangible property, and there is nothing in the nature of things or in the limitations of the
federal constitution which restrains a state from taxing such intangible property at its real
value. Whenever separate articles of tangible property are joined together, not simply by a
unity of ownership, but in a unity of use, there is not unfrequently developed a property,
intangible though it may be, which in value exceeds the aggregate of the value of the separate
pieces of tangible property. Whatever property is worth for the purposes of income and sale,
it is worth for the purposes of taxation; and, if the state comprehends all property in its
scheme of taxation, then the good will of an organized and established industry must be
recognized as a thing of value, and taxable. The capital stock of a corporation and the shares
in a joint-stock company represent not only its tangible property, but also its intangible
property, including therein all corporate franchises, and all contracts, privileges, and good
will of the concern; and when, as in the case of the express company, the tangible
property of the corporation is scattered through different states, by means of which its
business is transacted in each, the situs of this intangible property is not simply where its
home office is, but is distributed wherever its tangible property is located and its work is
done.
and the shares in a joint-stock company represent not only its tangible property, but also its
intangible property, including therein all corporate franchises, and all contracts, privileges,
and good will of the concern; and when, as in the case of the express company, the tangible
property of the corporation is scattered through different states, by means of which its
business is transacted in each, the situs of this intangible property is not simply where its
home office is, but is distributed wherever its tangible property is located and its work is
done. No finespun theories about situs should interfere to enable these large corporations,
whose business is of necessity carried on through many states, from bearing in each state such
burden of taxation as a fair distribution of the actual value of their property among those
states requires.
See, also, Adams Express Co. v. Kentucky, 166 U. S. 171; Wells, Fargo & Co. v. Johnson,
205 Fed. 60.
Since the decisions of the Supreme Court of the United States reported in the 165th and
166th U. S. Reports, cited supra, it has been the settled law in this country that the property of
an express company doing both an interstate and intrastate business is in character both
tangible and intangible; that such property may be subject to assessment and taxes and that
the situs of this intangible property is distributed wherever its tangible property is located and
the work is done.
[3] Counsel for appellant do not, as we understand, contend that a state may not under
appropriate laws levy a tax upon the intangible property of an express company, but that the
tax sued upon was not a property tax, and, further, that the State of Nevada had enacted no
laws by virtue of which such a tax could be imposed.
Article 10 of the state constitution provides:
The legislature shall provide by law for a uniform and equal rate of assessment and
taxation, and shall prescribe such regulations as shall secure a just valuation for taxation of all
property, real, personal and possessory, except mines and mining claims, * * * and, also,
excepting such property as may be exempted by law for municipal, educational, literary,
scientific, or other charitable purposes."
excepting such property as may be exempted by law for municipal, educational, literary,
scientific, or other charitable purposes. (Rev. Laws, sec. 352, as amended, Stats. 1913, p.
106).
Section 5 of the general revenue act (Rev. Laws, sec. 3621) provides:
All property of every kind and nature whatever, within this state, shall be subject to
taxation except: (Here follows exceptions authorized by the provisions of the constitution,
supra.)
Section 6 of the same act (Rev. Laws, sec. 3622) provides:
The term real estate,' when used in this act shall be deemed and taken to mean and
include, and it is hereby declared to mean and include * * *; and the same shall be listed
under the head real estate.'
The term personal property,' whenever used in this act, shall be deemed and taken to
mean, and it is hereby declared to mean and include * * * all capital loaned, invested,
or employed in trade, commerce or business whatsoever; the capital stock of all corporations,
* * * companies, associations, ferries, or individuals doing business or having an office
within this state; * * * and all property of whatever kind or nature not included in the term
real estate,' as said term is defined in this act. * * *
It is clear from the foregoing excerpts, we think, that the constitution authorizes and the
statute directs that all property of every kind, character, and nature not specifically exempted,
is subject to taxation. The fact that the legislature, at the time of the adoption of the statute,
supra, may not have indulged in the hope even that property of the appellant company, other
than that visible to the naked eye, might be subject to taxation, nevertheless, it used language
clearly evincing an intent to cover every possible contingency and to exclude from the burden
of taxation only such property as was specifically exempted.
[4] It is further contended, however, that the legislature has failed to adopt any rule or
regulation governing the manner of determining the value of the intangible property of
the appellant corporation, and without such rule or regulation having been prescribed by
the legislature the revenue officers of the state are unauthorized to make an assessment.
has failed to adopt any rule or regulation governing the manner of determining the value of
the intangible property of the appellant corporation, and without such rule or regulation
having been prescribed by the legislature the revenue officers of the state are unauthorized to
make an assessment. We think this objection sufficiently answered by the decision of this
court in State v. Central Pacific R. R. Co., 10 Nev. 47, 63. This court, speaking through
Beatty, J., said:
No principle of valuation of property for purposes of taxation is prescribed by the laws of
this state. The statutes define the different species of property, and provide that every species
shall be assessed at its actual cash value.' But as to the mode of ascertaining the cash value
our law is silent. No subsidiary principles of valuation are laid down to guide the owner in
making his statement in those cases where he is required to specify values; and the assessor is
left equally unrestricted in making his estimates. It follows that owners and assessors must be
guided by those general principles which everywhere determine the valuation of property,
independently of statutory rules.
See, also, Commercial E. C. & P. Co. v. Judson, 21 Wash. 49, 57 L. R. A. 78.
The property, tangible and intangible, of the appellant corporation being subject to
taxation, was it duly assessed and taxed?
[5-6] By section 8 of the general revenue law (Rev. Laws, sec. 3624) it is provided:
Between the date of the levy of taxes and the first Monday of September in each year, the
county assessor * * * shall ascertain, by diligent inquiry and examination, all property in his
county, real or personal, subject to taxation, and also the names of all persons, corporations,
associations, companies, or firms, owning the same; and he shall then determine the true cash
value of all such property, and he shall then list and assess the same to the person, firm,
corporation, association, or company, owing [owning] it.
owing [owning] it. For the purpose of enabling the assessor to make such assessments, he
shall demand from each person and firm, and from the president, cashier, treasurer, or
managing agent of each corporation, association, or company, including all banking
institutions, associations, or firms within his county, a statement under oath or affirmation of
all the real estate or personal property within the county, owned or claimed by such persons,
firm, corporation, association, or company. * * *
Section 1 of an act entitled An act to provide for a more uniform valuation and
assessment of property in this state, approved March 16, 1901 (Rev. Laws, sec. 3797),
provides:
The county assessors of the several counties of this state shall meet for a period not
exceeding ten days in the office of the governor at Carson City, Nevada, on the second
Monday in January of each year, and shall at such meetings establish a valuation through the
state of all railroads and rolling stock of such railroads, of all telegraph and telephone lines, of
all electric-light and power lines, of all cattle and sheep, and upon all other kinds of property
which in the judgment of said assessors can be valued and assessed more uniformly by said
assessors, acting collectively, than by the several county assessors acting separately; provided,
that in fixing such valuation the location and situation of such property shall be considered;
and, provided further, that nothing herein shall be so construed as to impair the right of the
board of equalization of any county to equalize taxes on all property, the valuation of which
has not been fixed at the annual meeting of the county assessors as provided in this section;
but the said county board of equalization shall not have the power to equalize any property
upon which a valuation has been placed by the said board of county assessors; provided, any
taxpayer under the provisions of this act shall not be deprived of any remedy or redress in a
court of law relating to the payment of taxes.
Section 4 of said last-mentioned act (Rev. Laws, sec. 3800) provides:
The valuation fixed at such annual meetings shall be the actual cash value of all such
property as may be designated, as now provided by law, taking into consideration the locality
of such property, and the assessors of the several counties shall assess and enter upon the
assessment rolls of their respective counties all such property at the valuation designated by
such meeting of county assessors, and shall fix the value and assess all property not so valued
at said meeting in the manner now provided by law.
It is contended that the provisions of the statute (Rev. Laws, sec. 3797, supra),
empowering the state board of assessors to establish a valuation * * * upon all other kinds of
property which in the judgment of said assessors can be valued and assessed more uniformly
by the said assessors, acting collectively, than by the several county assessors acting
separately, is a void attempt to delegate legislative power.
Counsel for appellant in their brief say:
The legislature cannot leave the question to the state board of assessors whether or not
express companies shall be taxed or shall escape taxation, yet this is what the legislature has
done, if the contention of plaintiff is correct.
We do not understand plaintiff to make any such contention, but it is clear that the statute
in question does not leave to the discretion of the state board of assessors whether the
property of express companies, or any other property subject to taxation, shall or shall not be
taxed. If this were the statute, it would be void; but the revenue statutes require all property,
except that specifically exempted, to be assessed either by the state board of assessors or by
the county assessors.
Cooley, in his work on Taxation, says:
We conceive that the legislature must, in every instance, prescribe the rule under which
taxation may be laid; it must originate the authority under which, after due proceedings, the
tax gatherer demands the contribution; but it need not prescribe all the details of action, or
even fix with precision the sum to be raised or all the particulars of its expenditure.
contribution; but it need not prescribe all the details of action, or even fix with precision the
sum to be raised or all the particulars of its expenditure. If the rule is prescribed which, in its
administration, works out the result, that is sufficient; but to refer the making of the rule to
another authority would be in excess of legislative power. An illustration or two may possibly
sufficiently explain the principle. The legislature, with the utmost propriety, may provide for
a court of claims or a state board of audit, whose adjudications against the state shall be final
upon it, and may direct that the amounts awarded shall go into the general levy for the year.
Here is a rule to be properly worked out by a proper agency. A like provision for the
adjustment of claims against counties, cities, and townships may also be made. A fund for
contingent expenses may be put at the disposal of the executive or of other state officers, to
be used for public purposes not previously enumerated in detail by the legislature. But to
leave to a court of claims or any state officer or board the power to determine whether a tax
should be laid for the current year, or at what rate, or upon what property, or how it should be
collected, and whether lands should be sold or forfeited for its satisfactionall this prescribes
no rule and originates no authority; it merely attempts to empower some other tribunal to
prescribe a rule and set in motion the tax machinery. And this is clearly incompetent. The
legislature must make the law, but it may prescribe its own regulations regarding the
ministerial agents that are to execute it.
The valuation of certain property must be determined by the state board, and the valuation
of all property not so determined by it must be fixed by the several county assessors acting
separately. The only discretion reposed in the state board is to determine whether other kinds
of property than those enumerated can be valued and assessed more uniformly by the board
than by the county assessors acting separately. The purpose of the assessment, whether made
by the board or the individual assessors, is to determine the cash value of the property, and
this purpose is declared by the legislature and cannot be delegated.
and this purpose is declared by the legislature and cannot be delegated.
As said by this court, in Sawyer v. Dooley, 21 Nev. 397, 32 Pac. 437:
All property, whether assessed by the board or by the county assessors, must be assessed
at its actual cash value, and there is no reason why this value may not be as accurately
determined by several different men and boards as by one. In fact, it might sometimes be
done much better, as one man, although an expert upon the value of horses and farms, might
know but little of railroads or other property. If not, this would be an equally good argument
against the system of separate county assessors and boards, and require all the property in the
state to be assessed and equalized by one man or one board. All that is required is a
uniformity of taxes, and not a uniformity in the manner of assessing or collecting them.
Ruling Case Law says:
The difficulty in determining what powers may or may not be delegated seems in part to
be due to a confusion between strictly legislative powers coming within the constitutional
limitation, and other powers, which, although at times exercised by the legislature, are not
strictly legislative and may be used in proper cases by persons belonging to the other
departments of government, hence it is said that the rule that legislative powers cannot be
delegated must be understood as being applicable only to cases where the discretion is
essentially legislative. * * * (6 R. C. L. 165.)
Power is delegated to the state board of assessors to determine whether certain property,
other than the classes specifically mentioned, may be assessed more uniformly by the board
than by the several assessors acting independently. The purpose of this delegated power, as
expressed by the statute, is to carry out the mandate of the constitution and statutes for
uniformity and equality in assessment and taxation of all property. The board is given no
power to discriminate in favor or against any class of property.
property. It may in certain cases take from the county assessor the power to determine the
valuation to be placed on a certain class of property, in which case the assessor is required to
enter the property on the tax roll at the valuation fixed by the state board, but, as before
stated, the statutory requirement as to cash valuation applies, whether the valuation is made
by the board or the individual assessor. While the question is not entirely free from doubt, it
is not clear that there is in this statute a delegation of strictly legislative power, and under the
well-settled rule doubts must be resolved in favor of the statute.
[7] Assuming that no notice was given appellant that the state board of assessors would
assess its property, we are of the opinion that the assessment would not for that reason be
invalid. The statute makes no provision for such notice, and where notice is not required by
statute none need be given. (37 Cyc. 1019, 1045.)
[8-9] Are the taxes involved in the action within the prohibition of a tax on interstate
commerce? If it is a tax on the property of the appellant within the state that is sought to be
recovered, then the tax is not invalid.
The language used by the assessor in the description appearing upon the assessment roll, it
must be conceded, furnishes room for controversy as to whether property subject to taxation
has in fact been assessed to appellant.
Counsel for appellant, in their claim that the language used in the description by the
assessor rendered the assessment void, suggest that if the description had been: The property
of Wells, Fargo & Company, situated in Humboldt County, as united in ownership and use
for express business, it would have been in accordance with what the Supreme Court of the
United States in 166 U. S., supra, held was property subject to taxation. It must be admitted
that the suggested description would have been better and, doubtless, would have obviated
the serious question here presented. It does not follow, however, that, because the most apt
language was not used, the description is so faulty as to render the assessment void.
the description is so faulty as to render the assessment void.
Under the provisions of section 8 of the general revenue law (Rev. Laws, sec. 3624, supra)
it was the duty of the assessor to demand of appellant and of appellant to furnish a statement
of its property subject to assessment in Humboldt County. In the absence of showing to the
contrary, it will be presumed that the officer performed his duty. It does not appear that the
appellant furnished any other or different description of its property. It had property subject to
taxation in Humboldt County as defined in 166 U. S., supra. It should have furnished a
statement of this property. It is denied, in the reply to defendant's answer, that the assessor
intended to or did levy a tax on appellant's right to engage in interstate commerce.
From the testimony of the assessor of Humboldt County given at the trial we quote the
following:
Q. You said you are familiar with the property; all you know about it is what those words
convey to you, is it not, Mr. Leonard? A. Yes, sir.
Q. You never saw the property? A. As much as anybody can see it.
Q. Well, did you ever see it? A. I have seen part of the business.
Q. Yes, but that is about all any one can know about the propertythe description that is
contained therein? A. Yes, sir.
Q. You did not see that property in the county? A. It is intangible.
The court refused to make a finding or to amend the findings upon the request of counsel
for defendant to the effect that the assessment and taxes described in the complaint were
made, levied, and imposed upon the right of defendant to conduct and transact its interstate
business over and along the railroad track and railway lines and systems named in said
complaint.
If we look to the action of the state board of assessors, we find that it had under
consideration the assessment and valuation of appellant's property as held subject to
taxation by the decision of the Supreme Court of the United States in 166 U. S., supra.
and valuation of appellant's property as held subject to taxation by the decision of the
Supreme Court of the United States in 166 U. S., supra. The motion made and carried by the
state board fixing a mileage valuation on the property of appellant was not very specific, so
far as description of the property to be assessed was concerned, but the purpose of the board
to assess property subject to assessment is quite manifest from its whole proceedings. It is,
however, alleged in defendant's answer, quoted supra, that * * * said board assessed this
defendant and valued the property used by this defendant at the rate * * * .
Cyc., under the heading, Necessity and Sufficiency of Description, says:
It is essential to the validity of the assessment list and of all proceedings founded on it
that it should contain a description of all the property intended to be assessed; but minute
particularity is not required, any description being sufficient which identifies the particular
property so clearly that the owner cannot be misled. And a detailed description will be more
easily dispensed with where the assessor is unable to ascertain the exact nature of the
property. It is not necessary to enumerate every item of personal property, but it has been held
that the different classes mentioned in the statute should be separately listed, although by the
force of some statutes, it is now held sufficient to list all such property under the general
description of personal property'; and an assessment even under such a heading as
miscellany' may be considered sufficient if the owner himself knows exactly what is meant.
(37 Cyc. p. 1051.)
A case presenting a question analogous to the one under consideration came before the
Supreme Court of California in 1911. (Western Union Telegraph Co. v. Los Angeles County,
160 Cal. 124, 116 Pac. 564.) The description of the property assessed in the case last
mentioned, as stated in the opinion, read:
Right to occupy the streets of the city of Los Angeles,' without other words of
description or identification, the valuation thereof for purposes of assessment being placed
at $50,000."
valuation thereof for purposes of assessment being placed at $50,000.
From the opinion of the court in that case by Angellotti, J., we further quote the following:
By Western Union Tel. Co. v. Hopkins (L. A. No. 2445), 160 Cal. 106, 116 Pac. 557, it is
decided that plaintiff had at the time of this assessment a right in the nature of a franchise in
the streets of the city of Los Angeles, viz, the right to the exclusive occupation without
compensation of portions thereof used for its poles and wires and underground conduit,
derived from and held under section 536 of the civil code, which constituted no part of its
federal franchise, and which was taxable for state and county purposes in the county of Los
Angeles. If the assessment in the case at bar was exclusively of that right, it follows from the
views announced in that case that the tax was valid. The only difficulty in this case arises
from the wording of the description in the assessment. It is admitted that plaintiff has certain
rights in regard to the streets of the city of Los Angeles by virtue of its federal franchise
acquired under act of July 24, 1866, c. 230, 14 Stat. 221 (U. S. Comp. St. 1913, secs.
10072-10077), and, of course, that franchise cannot be assessed by state, county, or
municipality. It is claimed by plaintiff that its federal franchise is included in this assessment,
and, if so included, that the entire assessment must fall as illegal, because the values of the
two rights, federal and state, are so blended together that the unlawful part cannot be
separated from the lawful part. If the first of these claims is well founded, the second
necessarily follows. (California v. C. P. R. R. Co. 127 U. S. 1, 29, 45, 8 Sup. Ct. 1073, 32 L.
Ed. 150.) Plaintiff alleged in its complaint that the assessment was upon its federal franchise.
By its answer defendant fully denied the allegations in this behalf, denying that the
assessment was intended to or did impose any burden or tax on any federal franchise, and
alleging that the only franchise or right assessed was that derived by plaintiff from the State
of California, under section 536 of the civil code.
from the State of California, under section 536 of the civil code. No evidence was introduced
by either side on this issue, the case being submitted for decision upon the pleadings and
upon a stipulation as to the facts, which stipulation is silent upon this proposition. There were
no findings of fact. We are satisfied that it must here be held that the assessment was limited
to rights in the streets of Los Angeles derived by plaintiff from the State of California, and
not covered by the federal franchise, and that the description was not so imperfect as to
invalidate the assessment.
It is our conclusion that the description, in the light of the record, is not so imperfect as to
invalidate the assessment.
[10-11] Is an assessment of appellant's personal property, tangible and intangible inclusive,
upon a mileage basis of $300 per mile of the lines of railroad over which appellant conducts
its business in this state, excessive? The burden of establishing excessive valuation was upon
the defendant. (Rev. Laws, sec. 3664, supra.) Assuming that the net operative earnings of
appellant were substantially the same in 1910 as in 1908, which appears to have been
conceded, we have the sum of $3,115,026.46 as the net operative revenue derived from the
tangible and intangible property combined in its business. This is a 10 per cent net earning on
property of the value of over $31,000,000. Taking the entire operative mileage of the
company, 65,474 miles, including nearly 15,000 miles of steamship lines, and we have a net
earning of approximately $48 per mile. Even if we exclude, from a capitalization of the net
earnings of the company upon a 10 per cent basis, the value of all the property of the
company situated outside the State of Nevada and used in its operative business, to wit,
$4,251,939.16, the figures would still show a net earning of over $40 per mile for the entire
system, or a valuation of $400 per mile for the system as a whole.
In taking 10 per cent as the basis of capitalization of the net earnings of the company, we
do not wish to be understood that so high a rate would be entirely just to the state, but
such rate is used for the purpose of showing that the valuation placed upon appellant's
property was well within a capitalization determined from an assumed high rate of
income.
the net earnings of the company, we do not wish to be understood that so high a rate would be
entirely just to the state, but such rate is used for the purpose of showing that the valuation
placed upon appellant's property was well within a capitalization determined from an
assumed high rate of income.
[12] Whether the system of determining the valuation of appellant's property, applied by
the state board of assessors, was correct or not, it does not appear that it operated to impose
an excessive valuation. The fact that erroneous methods may in good faith have been used to
determine valuations is immaterial, we think, if an excessive valuation did not result
therefrom.
In taking the total operative mileage of the company in making the above estimate of
value, we do not wish to be understood as holding that the ocean steamship mileage should be
included. For the present we express no opinion as to whether that mileage should be
considered. Assuming that it ought not to be included, and assuming 8 per cent to be a fair
rate of interest upon which to estimate the value of appellant's property subject to assessment
upon a mileage basis, we would have resulting a valuation in excess of $750 per operative
mile.
Appellant contends that the net income of the company from its intrastate business in
Nevada for the year 1910 was only $6,225.61, and, if any basis of capitalization is taken to
determine the value of property within the state, it should be on this sum. This calculation
leaves out entirely, as a means of determining the value of the tangible and intangible
property of the company within the state, net receipts from interstate business, and does not
take into consideration at all the net operative receipts of the entire system, and is not a fair
means of determining valuation as pointed out by the Supreme Court of the United States in
the 165th and 166th U. S. Reports, supra.
Judgment affirmed.
____________
38 Nev. 541, 541 (1915) Neven v. Neven
[No. 2150]
LAURA A. NEVEN, Respondent, v. JAMES H. NEVEN, Appellant.
[148 Pac. 354]
1. Appeal and ErrorContinuanceDiscretion of Trial Court.
A motion for a continuance is addressed to the discretion of the court, and its ruling will not be reversed,
except for most potent reasons.
2. ContinuanceDiscretion of Trial Court.
Where defendant, in a suit for divorce, was present with his counsel in court on March 28, when by his
consent the case was set for trial April 4, without then informing the court of the necessity of his being
absent so near that date as to prevent his presence at the trial, and it did not appear that his absence before
the trial, which prevented his presence at the trial, was due to a court proceeding, denial of continuance
because of his absence, supported by a telegram merely announcing his inability to be present because of
guardianship proceedings, was not an abuse of discretion.
3. ContinuanceGroundsDistrict Court Proceedings.
A party in two court proceedings in different places is bound by the first notice of trial, and the
requirement of his presence at that trial affords a ground for a continuance of the other proceeding.
4. ContinuanceGroundsAbsence of Party.
A party who is a material witness in his own behalf is not entitled to a continuance because of his
absence, unless he shows that he had his testimony ready for use at the trial, but was prevented from
attending the trial by some obstacle which, by the exercise of reasonable diligence, he could not overcome,
and which he did not create by his own voluntary act.
Action for divorce by Laura A. Neven against James H. Neven. From an order denying a
motion for a new trial, after judgment for plaintiff, defendant appeals. Affirmed.
Sweeney & Morehouse, for Appellant:
The rule as to continuances is that the discretion confided to the court is a legal discretion
to be exercised, not capriciously or arbitrarily, but by fixed legal principles, and in a manner
to subserve and not defeat the ends of substantial justice. (Phelps v. Owens, 11 Cal. 22;
Bailey v. Taaffe, 29 Cal. 424; Springer v. Davis, 30 Cal. 322; Lybecker v. Murray, 5S Cal.
1S6; Jaffe v. Lilienthal, 101 Cal. 175; Robertson v. Wooley, 32 Pac. 1060; Pate v. Tait, 72
Ind.
38 Nev. 541, 542 (1915) Neven v. Neven
Bailey v. Taaffe, 29 Cal. 424; Springer v. Davis, 30 Cal. 322; Lybecker v. Murray, 58 Cal.
186; Jaffe v. Lilienthal, 101 Cal. 175; Robertson v. Wooley, 32 Pac. 1060; Pate v. Tait, 72
Ind. 450.)
The court cannot lay down a general rule for the continuance of causes, but must under the
circumstances of each case take care that injustice is not done either by precipitate trials or
wanton delays, and when there appears to be a fair ground for the postponement the case will
be continued. (4 Ency. U. S. Sup. Ct. 544; Symes v. Irvine, 2 Dall. 305.) But, whatever the
rule may be as to other actions, in divorce cases it is more liberal, in that the state, as well as
the parties to the action, is interested in the result thereof, and the court should afford the
fullest possible hearing. (McBlain v. McBlain, 77 Cal. 509; Wadsworth v. Wadsworth, 81
Cal. 182; Cottrell v. Cottrell, 83 Cal. 3459; Deyoe v. Sup. Ct., 140 Cal. 482.)
Dodge & Barry, for Respondent:
Absence on business of an ordinary character is no ground for postponement. (9 Cyc. 95;
Barnes v. Barnes, 95 Cal. 179; Wilkerson v. Parrot, 32 Cal. 102.)
This was an action for divorce, commenced in the district court of Washoe County by
respondent. Judgment having been rendered for respondent, a decree of the court was
rendered in her favor in accordance with the prayer of her complaint. Appeal is taken to this
court from the order denying appellant's motion for a new trial.
One question only is presented to this court for determination, namely: Was it an abuse of
discretion for the trial court to deny appellant's motion for a continuance of the trial of the
case?
The record discloses that on the 21st day of March, 1914, the attorneys for the respective
parties being in court, the trial of the case was, by consent of said attorneys, set for Thursday,
the 26th day of March, 1914, at 10 o'clock a. m.
38 Nev. 541, 543 (1915) Neven v. Neven
10 o'clock a. m. It further appears that on the 26th day of March, 1914, at the hour at which
the case was set for trial, the plaintiff appeared in court, with her attorneys and witnesses, to
proceed with the trial. The defendant, at that time, through his attorneys, presented the
affidavit of a physician in furtherance of his motion for a continuance. The affidavit of the
doctor was to the effect that appellant was in ill health and unable to be present at the trial.
Upon motion of counsel for the appellant, the case was continued, and on Saturday, the
28th day of March, 1914calendar day in the district courtappellant and respondent and
their respective attorneys being in court, the cause was, by and with the consent of all parties,
set for trial for Saturday, the 4th day of April, 1914, at 10:30 o'clock a. m. of that day.
On Saturday, the 4th day of April, 1914, at the hour set for the commencement of the trial,
the plaintiff appeared in person and with her attorneys and witnesses. The defendant was not
present, and one of his attorneys presented a telegram from defendant in furtherance of a
verbal motion for continuance. The telegram, admitted and filled in furtherance of the
motion, is as follows:
Western Union Telegram
Received at 127 N. Center St., Reno, Nev. Phone 436.
Always Open.
13SFX7. Filed 828 AM. Elko, Nev., Apl. 4, 1914.
Sweeney & Morehouse, Reno, Nevada.
Detained here unavoidably. Guardianship matter Le Roy Neven. J. H. Neven. 832 AM.
The motion of appellant being resisted by respondent in the court below, the respondent
herself took the stand and testified with reference to appellant going to Elko, as follows:
Q. Do you know what he went to Elko for? A. Well, some matter pertaining to the estate
of Roy Neven.
Q. His nephew? A. Yes.
Q. Was it going to be heard in court, or did he just go to consult with attorneys? A. Well,
he talked with me about it Thursday, and he said, 'Will you go up to Elko with me and have
Judge Taber cross-question you?' I said, 'When?' He said, 'Tonight.
38 Nev. 541, 544 (1915) Neven v. Neven
about it Thursday, and he said, Will you go up to Elko with me and have Judge Taber
cross-question you?' I said, When?' He said, Tonight. You can come back Friday night.' I
said, No. I wouldn't take any chances on coming back Saturday night, because,' I said, you
know our affair comes up Saturday.' I said, Is it necessary for you to go tonight?' He said,
No, it is not; but I will have to go some time soon.'
Q. Did you impress upon him at that time the importance of his being back here at this
time? A. Well, we talked about it. He knew for a certainty it would come up today, and he did
not say when he went out of the house that he was going to Elko; just went in the bathroom,
cleaned up and went out; didn't day anything about going to Elko to me.
Q. Has he told you at any time that he would delay the trial of this case? A. Oh, yes; right
from the start he said he would delay it as much as possible, and that if he had his way it
never would come to trial.
The motion of appellant's attorney for continuance being denied, the court proceeded to the
trial of the case.
At the conclusion of the plaintiff's case, the attorneys for appellant again renewed their
motion for a continuance. In furtherance of their motion, one of the attorneys made a
statement under oath to the effect that on Thursday, April 2, appellant informed him that he
was going to Elko, concerning some matter in probate; that he then and there informed
appellant that this cause was set for the morning of April 4, at 10:30 o'clock, and that he must
return in time for this matter to be heard.
The motion for continuance was again denied, and, no evidence being offered on behalf of
defendant, appellant herein, the court rendered judgment for the plaintiff.
Appellant later moved the court for a new trial, and, in furtherance of his motion, filed his
affidavit setting forth the reason for his absence on the date of the trial of the cause. A portion
of his affidavit is as follows:
James H. Neven, being first duly sworn, deposes and says: That he is the defendant in the
above-entitled action; that on Thursday, the 2d day of April, 1914, defendant had very
important business to attend to in Elko, county of Elko, Nevada; that he took the train
from Reno for Elko on the evening of Thursday, April 2d, with full intent and purpose of
returning not later than Friday evening, April 3d; that he knew that the action above
entitled as against him was set for trial at 10:30 o'clock a. m.
38 Nev. 541, 545 (1915) Neven v. Neven
action; that on Thursday, the 2d day of April, 1914, defendant had very important business to
attend to in Elko, county of Elko, Nevada; that he took the train from Reno for Elko on the
evening of Thursday, April 2d, with full intent and purpose of returning not later than Friday
evening, April 3d; that he knew that the action above entitled as against him was set for trial
at 10:30 o'clock a. m. of the 4th day of April, 1914. That he intended to go to Elko on April
2d and return to Reno on the evening of April 3d, so as to be ready for participating in the
trial and defending himself in the aforesaid action on Saturday, April 4th, at 10:30 a. m. of
that day. That upon his arrival in Elko he had certain conversations and business dealings
with the attorneys of Le Roy Neven, whose estate during his minority was under control of
affiant as guardian, and his business dealings with these people, to wit, the attorneys for Le
Roy Neven, was to enable them to fix up the accounts necessary to be reported by affiant and
obtain the discharge of affiant as guardian of the said Le Roy Neven. That he had no purpose,
design, or intent in going to Elko, Nev., to interfere with the trial of this cause in the court on
the 4th day of April, but with good faith and with good intent he thought he would finish the
business he had in Elko, Nev., and return on the evening of April 3d, so as to be ready for
trial the morning of April 4th. That train No. 5 of the Southern Pacific Railroad Company
from Elko, which is due in Reno at 8:50 a. m., April 4th, was 6 hours and 45 minutes late,
rendering it impossible for defendant to appear in court and participate in defending said
cause and having a hearing of said cause on the 4th day of April as aforesaid. That it was
through no fault or neglect of this defendant that he was not present at the trial and would be
prepared to defend the said action, but, by reason of the fact that train No. 5 was 6 hours and
45 minutes late, affiant did not arrive in Reno until after 3 o'clock p. m. of Saturday, April
4th. That realizing that he could not return by reason of the fact that the said train, over which
he had no control, was 6 hours and 45 minutes late, he {affiant) sent a telegram to H. V.
Morehouse, one of his counsel, stating that he was unable to be present and was
unavoidably detained, hoping thereby that his counsel {the said H. V. Morehouse) would
be enabled to obtain a continuance of this cause at least for the purpose of taking the
testimony which would be offered by the defendant in person and by his witnesses."
38 Nev. 541, 546 (1915) Neven v. Neven
no control, was 6 hours and 45 minutes late, he (affiant) sent a telegram to H. V. Morehouse,
one of his counsel, stating that he was unable to be present and was unavoidably detained,
hoping thereby that his counsel (the said H. V. Morehouse) would be enabled to obtain a
continuance of this cause at least for the purpose of taking the testimony which would be
offered by the defendant in person and by his witnesses.
[1] It is needless for us to cite authority in support of a proposition that has become almost
universally recognized: That a motion for continuance is addressed to the discretion of the
court. The reason for this rule is manifest. The trial court is apprised of all the circumstances
concerning the case and the previous proceedings, and has before it the parties, from whose
conduct and utterances it has opportunity to judge as to whether or not the motion is made in
good faith, or as to whether or not deception and fraud are being perpetrated on the court with
a view to delaying the proceedings. It is for these reasons that courts of review generally have
taken a position that the action of a trial court, in granting or denying a motion for
continuance, will not be reversed, except for the most potent reasons.
The rule has been laid down by some courts (and, in our judgment, advisedly so) that a
greater degree of liberality should be accorded in matters of continuances in divorce cases
than in any other civil actions; the reason for this being that the public, as well as the parties
to the action, are interested in the result of the suit. However this may be, we concur in the
expression of the Supreme Court of California, in the case of Barnes v. Barnes, 95 Cal. 171,
30 Pac. 298, 16 L. R. A. 660, that a defendant must be held to the exercise of good faith and
diligence, and cannot be heard to complain if the failure to present his defense results from an
attempt to subordinate the business of the court to his own business engagements and
convenience.
[2-3] The statement of appellant, made in his affidavit, makes no attempt to establish
that appellant was required, either by court process or the pendency of court proceedings,
or even by urgent or imminent business engagements, to be in Elko either on April 2, 3, or
4.
38 Nev. 541, 547 (1915) Neven v. Neven
makes no attempt to establish that appellant was required, either by court process or the
pendency of court proceedings, or even by urgent or imminent business engagements, to be in
Elko either on April 2, 3, or 4. The record fails to disclose that any proceedings were pending
in any court in Elko, or elsewhere, in which appellant was directly or indirectly concerned.
The most that can be said for the affidavit of appellant is that it attempts to set forth that he
had very important business to attend to in Elko; that upon arrival in Elko he had certain
conversations and business dealings with the attorneys of Le Roy Neven, whose estate, during
his minority, was under the control of affiant as guardian; that his business dealings in this
respect with these people, to wit, the attorneys for Leroy Neven, were to enable them to fix up
the accounts necessary to be reported by affiant and obtain the discharge of affiant as
guardian of said Le Roy Neven. Nothing in the affidavit indicates, even inferentially, that this
business transaction with the attorneys of Le Roy Neven was a matter imminent, urgent, or
pressing, or one which demanded or required the presence of appellant upon either the 2d, 3d,
or 4th day of April, or, in fact, upon any other particular date. Nothing appears in the record
which tends to contradict the testimony of Mrs. Neven, the respondent herein, wherein she
states that she cautioned appellant, prior to his departure for Elko, and said, Is it necessary
for you to go tonight? to which he replied, No, it is not; but I will have to go some time
soon. Counsel for appellant, in their brief, urge that this business in Elko was a court
proceeding, in which appellant was an interested party, but this is nowhere supported by the
record, nor even by the affidavit of appellant.
The record discloses that appellant was present in court on the 28th day of March, with his
attorney; that on that date, by his consent, the case was set for trial on April 4. If a visit to
Elko was urgent or pressing, he should have brought such matter to the attention of the court,
or at least made some effort to have this case set at a date more convenient to him; and
even though it was a court proceeding in Elko at which, by reason of his interest therein,
he was required to be present, if those proceedings had been set prior to the 2Sth day of
March, he must have been cognizant of that fact, and should have urged that matter at
the setting of this case.
38 Nev. 541, 548 (1915) Neven v. Neven
least made some effort to have this case set at a date more convenient to him; and even
though it was a court proceeding in Elko at which, by reason of his interest therein, he was
required to be present, if those proceedings had been set prior to the 28th day of March, he
must have been cognizant of that fact, and should have urged that matter at the setting of this
case. If it was a court proceeding in Elko, in which his presence was urgent and the date of
that proceeding was set after the 28th day of March, he was bound by the first notice of trial,
and the requirement for his presence at the trial of this cause would have been reasonable
ground for a continuance in the Elko proceeding. (Finar v. Fillmore, 1 Mich. N. P. 172.)
[4] It is unnecessary for us to dwell upon such rules and observations as have been made
by either this or other courts upon the subject of the absence of witnesses as a ground for
continuance in civil cases. Such rules and observations are not strictly applicable to the matter
at bar. In this case the absent witness was the party defendant himself; and he is bound by a
different rule from that which might be applicable if the absent witness were one in no wise
interested in the suit, in that, as a general proposition, a stricter showing of good cause is
required. (6 R. C. L. 551.)
A party who is a material witness in his own behalf, says the Appellate Court of Illinois,
must have his testimony ready for use at the trial, unless prevented from so doing by some
obstacle which by the exercise of reasonable diligence he cannot overcome, and the obstacle
should not be one which he has created by his own voluntary act. If he allows considerations
of business or pleasure, or even regard for his own health, to call him away at a time when his
suit is liable to be called for trial and thereby he loses the benefit of his own testimony, he
must, ordinarily, suffer the consequences. (Schlesinger v. Nunan, 26 Ill. App. 525.)
The expression of the Supreme Court of California in the Barnes case, supra, was again
referred to approvingly in the case of Estate of Kasson, 141 Cal.
38 Nev. 541, 549 (1915) Neven v. Neven
the Barnes case, supra, was again referred to approvingly in the case of Estate of Kasson, 141
Cal. 33, and is generally cited as a leading case upon the subject. (6 R. C. L. 551; Am. Ann.
Cas. 1914b, 360.)
It must be observed that the telegraphic communication from the appellant to his attorney,
filed in the district court in furtherance of the motion for continuance on the 4th day of April,
made no mention of the delayed train as being the cause of the absence of appellant. The
telegram was filed at Elko at twenty-eight minutes after 8 o'clock on the morning of the 4th
day of April, and makes no intimation that appellant was or would be on the delayed train No.
5. It says: Delayed here unavoidably. Guardianship matter Le Roy Neven.
If the lateness of train No. 5 had been the real cause of the absence or delay of appellant, it
would have been a simple matter to make mention of that fact in the telegram. Moreover, in
the motion for continuance, made by the attorneys for appellant on April 4, there was no
mention of appellant being on this delayed train, or that he would arrive on the delayed train,
or within any reasonable time. A showing to this effect, made properly and in good faith,
might have been at least a reasonable ground to warrant the trial court in continuing the
hearing until the arrival of the defendant. But in the record we find no assurance given that
the defendant would be able to attend the trial at any designated time.
The affidavit of appellant, filed in furtherance of his motion for a new trial and made the
basis of his appeal in this case, states that his object in sending this telegram was the hope
that thereby his counsel would be enabled to obtain a continuance of this cause, at least for
the purpose of taking the testimony which would be offered by defendant in person and by his
witnesses. In this respect, the record discloses that no witnesses were in attendance upon the
trial, by subpena or other process of the court, on behalf of appellant. If, however, witnesses
on behalf of appellant had been present at the time of trial, the absence of appellant would
not have precluded his attorney from introducing such testimony, bearing upon the case,
as might be adduced from those witnesses.
38 Nev. 541, 550 (1915) Neven v. Neven
time of trial, the absence of appellant would not have precluded his attorney from introducing
such testimony, bearing upon the case, as might be adduced from those witnesses. The record
discloses neither the presence of any witnesses on behalf of defendant, nor that any witnesses
were placed upon the stand in his behalf, nor testimony of any kind or character offered,
either in contradiction of the allegations of respondent's complaint or in support of appellant's
cross-complaint. Moreover, the counsel for appellant who made his statement under oath in
furtherance of his motion for continuance, at the conclusion of respondent's case, made no
intimation that any witnesses were present on behalf of appellant.
From the record as it is before us we find nothing that would support appellant's
contention that it was an abuse of discretion for the trial court to deny the motion for
continuance.
It follows that the order denying appellant's motion for a new trial should be affirmed.
It is so ordered.
On Petition for Rehearing
Counsel for appellant, in their petition for rehearing, make the following assertion:
At the same time, the fact exists that Neven was cited into court at Elko County, to make
an accounting for the guardianship of Le Roy Neven, his nephew.
If the statement of counsel for appellant here quoted were supported by the record before
us to any extent whatever, then a rule might apply in favor of appellant different from that
asserted in the former opinion of this court. The fact is, however, that this assertion is
unsupported by anything in the record before us. The affidavit of appellant, filed in the court
below in furtherance of his motion, makes no such declaration. In the statements made by
counsel for appellant before the trial court on the day of the trial, in explanation of the
absence of appellant and in furtherance of the motion for a continuance, there is nothing
indicating that appellant Neven had been "cited into court in Elko," or that appellant had
been called there by any process issued out of any court.
38 Nev. 541, 551 (1915) Neven v. Neven
made by counsel for appellant before the trial court on the day of the trial, in explanation of
the absence of appellant and in furtherance of the motion for a continuance, there is nothing
indicating that appellant Neven had been cited into court in Elko, or that appellant had been
called there by any process issued out of any court. And it may be not out of place to observe
here that, had any citation or process issued calling for the presence of the appellant Neven, it
would have been a simple matter to have produced the same in the trial court either in
furtherance of the motion for a continuance or as a part of the affidavit of appellant, and the
same would thereby have become a part of the record before this court.
The testimony of the respondent, Mrs. Neven, in detailing a conversation between herself
and appellant relative to his going to Elko, sets forth that on Thursday, April 2, when
appellant invited her to go with him to Elko, she inquired of him: It it necessary for you to
go tonight? To which he, the appellant, answered: No, it is not; but I will have to go some
time soon.
Petition for rehearing should be denied.
It is so ordered.
____________
38 Nev. 552, 552 (1915) Ramelli v. Sorgi
[No. 2056]
CAESAR RAMELLI, Respondent, v. NICK SORGI, Appellant.
[149 Pac. 71]
1. Waters and WatercoursesAction to Determine Water RightsDecreeCertainty.
Rev. Laws. sec. 4677, and the water law (Stats. 1913, c. 140), provide that in all measurements of water a
cubic foot of water per second of time shall be the standard of measurement. Plaintiff sued defendant to
have it adjudged that he was the owner of three-eighths of the water of a creek, and the court so decreed
and enjoined defendant from diverting such three-eighths of the water or any part thereof from the stream.
Held, that the decree was too uncertain as to the quantity of water to which plaintiff was entitled, but
should use the standard of measurement described by the statute or some measurement readily translatable
therein.
2. Waters and WatercoursesEvidence of Water RightsDescription in Deed.
The predecessors of plaintiff and defendant and a third person appropriated water from a stream for
irrigation purposes, the appropriation purporting to include all the waters of the stream. By a partition deed,
the other parties conveyed to plaintiff's predecessor three-eighths of the water of such stream. Held, that in
an action to determine plaintiff's rights, though the deed had some evidentiary value, it was not conclusive
as to the quantum of such right, as the right to water in a natural stream must rest on proof of actual
appropriation and application to a beneficial use, and a description of a water right in a deed is not
ordinarily conclusive.
3. Waters and WatercoursesAction to Determine Water RightsDecreeCertainty.
In an action to have it adjudged that plaintiff was the owner of three-eighths of the water of such stream,
it being an admitted fact from the pleadings that he and defendant had rights to certain of the water, equal
in time, the court should have determined the rights of both parties, and should have specifically designated
some point on the stream where plaintiff's rights might be measured.
ON REHEARING
1. Water and WatercoursesInjury to Adjacent Property.
Where several parties, acting independently, contribute to the injury, the party injured may proceed
severally against the parties contributing to the injury.
2. Water and WatercoursesLiability of Third PartiesInjunction.
The fact that waste water from defendant's lands flowed without interruption across the lands of a third
party, would not affect the right of plaintiff to enjoin defendant from flowing such waste water upon
plaintiff's lands.
Action by Caesar Ramelli against Nick Sorgi. From a judgment in favor of the plaintiff,
the defendant appeals. Reversed and remanded, with directions.
Harwood & Springmeyer, for Appellant:
The judgment following the evidence and findings fails to fix the quantity of water to
which any of the parties is entitled, and fails to determine the priorities. A decree of the court
in this respect must be definite. (Walsh v. Wallace, 26 Nev. 299; Weil on Water, 3d ed. p.
702; Lee v. Hanford, 21 Idaho, 327; Steinberger v. Meyer, 62 Pac. 483; Authors v. Bryant, 22
Nev. 242.)
The trial court erred in refusing to bring in necessary and indispensable parties. (Bliss v.
Grayson, 24 Nev. 422; Robinson v. Kind, 23 Nev. 338.)
It is a fundamental rule in equity that all parties, however numerous they may be, who are
interested in the subject of the suit and its results, should be made parties. (16 Cyc. 181, 189.)
Summerfield & Richards, for Respondent.
Respondent brought suit against defendant praying for a judgment and decree to the effect
that the respondent is the owner and entitled to the usufructuary right to three-eighths of the
natural flow of the water of Steamboat Creek; that respondent have a perpetual injunction
against appellant restraining him from diverting three-eighths, or any portion thereof, of the
waters of said creek away from the lands of respondent or in any manner interfering with the
respondent's use thereof and, also, from causing, permitting, or suffering the waste waters
from certain lands of appellant flowing upon certain lands of respondent; for damages in the
sum of $2,200, and for costs. Judgment was awarded respondent in accordance with the
prayer of the complaint, excepting that nominal damages only were allowed.
While the record filed in this court discloses that a motion for a new trial was interposed
and denied in the court below, the appeal appears to be from the judgment only, and hence
will limit the consideration of the points raised to the one main question.
It is the contention of appellant that the judgment is void for uncertainty, in that it fails to
fix with requisite definiteness the amount of water to which either of the parties is entitled,
and fails to determine priorities; that, under such circumstances, injunctive relief is improper.
So much of the judgment as is involved in the question presented reads as follows:
And it is further adjudged and decreed that the plaintiff was at the time of the
commencement of this action, and now is, the owner and entitled to the usufructuary right for
irrigation, stock, and domestic purposes during the irrigating season of each year of
three-eighths of the natural flow of the waters of Steamboat Creek, and his ownership and
title thereto is hereby established and declared. And it is further adjudged and decreed that the
defendant, Nick Sorgi, his servants, agents, attorneys, and employees, and all other persons
acting under the control and authority and direction of defendant, be and they are hereby
perpetually enjoined and restrained from diverting said three-eighths, or any part thereof, of
the natural flow of the waters of Steamboat Creek from the said creek and away from the
lands of said plaintiff during the irrigating season of each year or from in any manner
interfering with the plaintiff's use thereof.
It is alleged in the complaint that, in the year 1860, B. G. Clow, appellant's predecessor,
W. P. Sturtevant, respondent's predecessor, together with T. G. Smith, acquired a possessory
right in common to certain unsurveyed lands in Washoe County and appropriated water from
Steamboat Creek for the irrigation thereof, such appropriation purporting to include all the
waters of Steamboat Creek for irrigation and other purposes; that in the year 1864, after the
land had been surveyed, the said tenants in common executed and delivered a deed in
partition of the land and water rights, the said deed purporting to convey to said Clow and
Sturtevant, respectively, "three-eighths of the waters of Steamboat Creek" and to said
Smith the remaining one-fourth.
in partition of the land and water rights, the said deed purporting to convey to said Clow and
Sturtevant, respectively, three-eighths of the waters of Steamboat Creek and to said Smith
the remaining one-fourth.
A demurrer was interposed to the complaint for uncertainty in not alleging the amount of
water necessary and the amount actually appropriated, and for defect of parties defendant, in
that other persons are interested as users of water from said creek between appellant's and
respondent's lands. The demurrer being overruled, defendant, appellant herein, filed answer
denying certain of the allegations of the complaint, setting up title in himself to certain of the
waters of Steamboat Creek, and praying that title to so much of the waters of the creek as may
be necessary to irrigate his lands be established and quieted in defendant as against the
plaintiff and all persons interested; that certain other water users on said creek be made
parties for a full determination of the case.
We come now to a consideration of the contention that the judgment is void for
uncertainty.
In Authors v. Bryant, 22 Nev. 242, 38 Pac. 439, this court said:
No subject is, perhaps, so prolific of controversies as the use of water by different
claimants for irrigation purposes, and a decree concerning it should be as certain as the use of
language can make it.
In Walsh v. Wallace, 26 Nev. 299, 76 Pac. 914, 99 Am. St. Rep. 692, this court,
considering the findings in the case and a decree enjoining appellants from diverting any of
the water of Reese River, and from in any way interfering with said water in such manner as
to prevent said water from flowing on the lands of respondents in sufficient quantity to
irrigate the same, said:
The court, by its findings and decision, determined but one issue. It did not determine all
the rights of either of the respondents, or any of the rights of the appellants. It left
undetermined the quantity of water sufficient to irrigate respondents' lands, and to that extent
it left undetermined respondents' rights, and thereby all the rights of the appellants.
it left undetermined respondents' rights, and thereby all the rights of the appellants. It cannot
be ascertained from the findings or the decision when the respondents have taken the quantity
of water sufficient to irrigate their land, or whether respondents can take subordinate to
appellants' rights at any time any of the waters by virtue of their appropriation.
So far as the findings, express or implied, are concerned, based upon the pleadings and
the evidence, the quantity appropriated is left to mere conjectureis left to be determined by
future litigation between the parties. The parties have no right to determine what is sufficient
or what is not sufficient to irrigate their land. The judgment and decree in this respect should
be certain and definite, and, unless the decree is certain and definite in this respect, it cannot
be upheld, except, under the circumstances of the case, the indefinite and uncertain quantity
given by the decree is capable of ascertainment.
Commenting upon the case last mentioned, Kinney on Irrigation and Water Rights, at
section 3009, uses the following language:
So, in a well-reasoned case decided by the Supreme Court of Nevada, where all the
parties had done all the things necessary for a valid appropriation of water, a decree without
any definite finding of amount appropriated, but only that plaintiffs had appropriated enough
to irrigate certain portions of their lands, which enjoins defendants from diverting any of the
water, and from interfering therewith so as to prevent the water from flowing onto plaintiff's
land in sufficient quantity to irrigate it, was held to be too indefinite to be sustained.
Kinney, in his work (section 1557), also says:
The decree and judgment of the court must be rendered in an action to adjudicate water
rights, and must be based upon the findings of fact and conclusion of law found by the court.
As the main purpose of such an action to quiet title is to determine the respective rights of the
parties to the use of the water, or their rights in a ditch or canal, the decree should definitely
award the respective rights to the parties to the action.
the decree should definitely award the respective rights to the parties to the action. Therefore,
in order to have a decree conclusive upon the subject by its future construction, it must be
sufficiently definite and certain as to the parties, the order of their respective priorities, the
quantity of water which each is entitled to use, the times when they are entitled to use the
water, and any other subject which the evidence in each particular case may develop.
From section 1558 we quote from the same author the following:
After the court has decided what parties are entitled to water rights, the next principal
question to be decided by the court is the quantity of water to which each party is entitled.
And in this respect the decree should be made as definite and certain as the use of language
can make it. Where a standard of measurement has been adopted by the statutes of the state
and the evidence before the court is sufficient for the court to render a decree in that standard,
the decree should state the quantity of water awarded to each party in that standard. However,
where the evidence is not sufficient for the court to adopt such a standard in its decree, but is
sufficient for the rendition of the decree upon some other basis or standard of measurement,
the court may render its decree in such other basis or standard. The principal object of the
court in this respect is that the decree be so definite and certain as to the quantity of water
awarded to each party that the matter may be deemed finally settled and adjudicated, and that
each party may know exactly what quantity or what proportion of the stream he is entitled to.
In Lee v. Hanford, 21 Idaho, 327, 21 Pac. 558, the court said:
The issue made by the pleadings in this case is the priority of the appropriation, and the
quantity of water so appropriated by each, as between the plaintiff and the defendant, of the
waters flowing in Blackman's Gulch Creek. The court finds that the plaintiffs are entitled to
all the waters of Blackman's Gulch Creek by reason of being prior appropriators thereof,
and the application of the same to a beneficial use.
being prior appropriators thereof, and the application of the same to a beneficial use. These
findings and also the decree are indefinite and ineffectual. * * *
Rev. Codes, sec. 3241, prescribes the measurement of water as a cubic foot of water per
second of time shall be the legal standard for the measurement of water in this state'; this
statute is the measurement of water which should be recognized by the court in entering a
decree of distribution, and in this case the court should have found the date of the
appropriation of the respective parties to this suit and the quantity appropriated and
beneficially used by each of such parties, and determined such question by the measurement
provided by the statute.
In Nephi Irrigation Co. v. Vickers, 15 Utah, 374, 49 Pac. 301, it was held that a decree
should be in conformity with the statue of that state, which provides:
That water may be measured by fractional parts of the whole source of supply with a
limitation as to periods of time when used or intended to be used; or it may be measured by
cubic inches, with a limitation specifying the depth, width, and declination of the water at
points of measurement, and, if necessary, with a further limitation, as to periods of time when
used, or intended to be used.
In Lost Creek Irrigation Co. v. Rex, 26 Utah, 485, 73 Pac. 660, it was held that a decree
should specify the amount of water necessary by an approved mode of measurement.
[1] An act of the legislature of 1907 (Rev. Laws, sec. 4677) provided:
In all measurements of water in this state a cubic foot of water per second of time shall be
the standard of measurement.
The same provision was carried into the water law of 1913 (Stats. 1913, c. 140).
While, under the peculiar circumstances of a particular case, a court might be justified,
notwithstanding the statute, in entering a judgment decreeing fractional parts of a stream to
one or more water users thereofa question, however, we do not determinesuch a
decree ought not to be sustained where no reason exists why the same should not be in
the standard of measurement prescribed by the statute or some measurement readily
translatable therein.
parts of a stream to one or more water users thereofa question, however, we do not
determinesuch a decree ought not to be sustained where no reason exists why the same
should not be in the standard of measurement prescribed by the statute or some measurement
readily translatable therein. While we may concede that a decree apportioning fractional parts
of a stream, in the absence of a statute fixing a standard of measurement, might not be held
void for uncertainty, nevertheless it must be conceded that such a decree in most cases would
be unsatisfactory, owing to the difficulty of readily determining the actual amount of water
constituting such fractional part.
[2] It would seem in this case that the partition deed executed in 1864, assuming to divide
the stream into fractional parts, was given great, if not controlling, consideration in
determining the amount of water to which the plaintiff was entitled. While such a deed has
some evidentiary value, the right to water in a natural stream must rest upon proof of actual
appropriation and application to a beneficial use, and a description of a water right in a deed
would not ordinarily be conclusive as to the quantum of such right.
It is an admitted fact from the pleadings that both the plaintiff and defendant possess other
lands than those embraced within the possessory right acquired by plaintiff's and defendant's
predecessors and included in the partition deed of 1864. These lands subsequently acquired
are irrigated from the waters of Steamboat Creek, and this fact may now affect the relative
interests of the parties in the stream.
[3] It is also an admitted fact from the pleadings that appellant and respondent have rights
to certain of the waters of Steamboat Creek equal in time. This, it seems to us, makes it
important that the rights of both parties be determined, and that there be specifically
designated some point upon the stream where respondent's rights may be measured.
While possibly not strictly before us for determination in the condition of the record, it
would seem that those water users on the stream, who divert water between the lands of
appellant and respondent, should be made parties, and their rights, also, determined.
in the condition of the record, it would seem that those water users on the stream, who divert
water between the lands of appellant and respondent, should be made parties, and their rights,
also, determined.
So much of the judgment as decrees to respondent three-eighths of the natural flow of the
creek and the injunction based thereon is set aside.
The cause is remanded, with directions to determine the amount of water the respective
parties are entitled to in accordance with the standard of measurement prescribed by statute,
and any injunction awarded to be based upon such standard of measurement.
On Rehearing
This case was heretofore determined on the appeal from the judgment. A rehearing was
granted because the court inadvertently overlooked the fact that counsel had stipulated for
diminution of the record so as to enable the court to pass on questions raised upon the appeal
from the order denying defendant's motion for a new trial. No attack is made upon the
correctness of the views expressed in the former opinion.
[1] It is contended by counsel for the appellant that the decree granting an injunction
against the appellant from causing, permitting and suffering the waste water from said
section 15 and the south half of section 1, T. 18 N, R. 20 E, to flow over, into, and upon the
plaintiff's land situate in section 3, T. 18 N, R. 20 E, should be set aside. It is urged that this
portion of the decree should be vacated for the reason that the court found that other persons
who were not made parties to the action contributed to the damage done to plaintiff's lands in
section 3 by permitting waste water to flow thereon, and that these other persons were
necessary parties to the suit. The court found that the lands of plaintiff in section 3 were
damaged by waste water from the lands of defendant situate in section 15 and the south half
of section 10, but refused to award any judgment for damages against defendant for the
reason that it was impossible to determine what portion of the damage was occasioned
by waste water from defendant's lands.
against defendant for the reason that it was impossible to determine what portion of the
damage was occasioned by waste water from defendant's lands. We are of the opinion that the
decree granting the injunction against the defendant permitting waste water to flow from his
lands above mentioned upon the lands of plaintiff is not invalid for want of other necessary
parties. It is not contended that the defendant and the other alleged necessary parties were
acting jointly in occasioning the damages in question. Where several parties, acting
independently, contribute to an injury, the party injured may proceed against the parties
contributing to the injury severally.
[2] It is further contended that the decree should be set aside because it appears from the
evidence that one George W. Mapes is the owner of the north half of section 10 and that, in
order for waste water to reach the lands of plaintiff, it must first pass over the lands of the
said Mapes. It is not contended that the evidence discloses that Mapes in any way made use of
the waste water from section 15 and the south half of section 10 upon the north half of section
10 before it passed upon the lands of plaintiff in the south half of section 3. The fact that
waste water from defendant's lands flowed without interruption across the lands of a third
party would not, we think, affect the right of plaintiff to enjoin defendant from flowing such
waste water upon his lands. If it were a fact that the owner of the north half of section 10
appropriated the waste water of defendant to his own use, and applied the same in the
irrigation of land in the north half of section 10, defendant would not be liable for damages,
and the injunction could not be enforced against him for the reason that an intervening party
had appropriated such waste water to his own use, and such intervening party alone would be
liable in damages to the plaintiff, or subject to injunction for such flow.
The judgment heretofore pronounced in the former opinion and decision of this court will
stand without modification.
____________
[No. 2119]
STATE OF NEVADA, Respondent, v. WELLS, FARGO & CO.
[See page 505]
Rehearing denied.
[NoteWrit of error to the Supreme Court of the United States.]
____________
38 Nev. 562, 562 (1915) Round Mountain Mining Co. v. Round Mountain Sphinx Mining Co.

[No. 1942]
ROUND MOUNTAIN MINING COMPANY (A Corporation), Appellant, v. ROUND
MOUNTAIN SPHINX MINING COMPANY (A Corporation), Respondent.
[36 Nev. 543, 645]
On the 30th day of April, 1914, a stipulation, signed by counsel for the respective parties,
was filed, setting forth that the above-entitled action, and all and singular the issues therein
involved as between the above-named appellant and the above-named respondent, John F.
Davidson, has been heretofore by compromise fully settled and discharged.
____________
38 Nev. 562, 562 (1915) Lawson v. Halifax-Tonopah Mining Co.
[No. 2050]
JOHN W. LAWSON, Respondent, v. HALIFAX-TONOPAH MINING COMPANY,
Appellant.
[36 Nev. 591, 646]
Affirmed by the Supreme Court of the United States, December 13, 1915. (239 U.S. 632.)
____________

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