concurrence">

Opinion by

BeosNAN, J., Lewis, C. J.,

concurring.

The facts material to be noticed in this case are as follows:

Armstrong instituted suit before a Justice of the Peace against the respondents, under the forcible entry and unlawful detainer Act, to recover possession of the “ International Hotel,” in the City of Virginia. Summons was issued on the 3d, retui'nable on the 17th day of October, 1864. The plaintiff alleged the monthly rents to be twelve hundred dollars, and in his complaint claimed five thousand dollars damages to be trebled. On the return day of the summons, the parties appeared, and the case was continued until the 22d day of October. On that day the case was further adjourned, and set for trial on the 28th, and the defendants ordered to serve and file an answer on the 24th day of October, 1864. On the day of the trial, the defendants moved to dismiss the case because the summons was returnable more than ten days after it was issued, and for. the .further reason that it did not have on a revenue stamp. The Justice thereupon affixed the proper revenue stamp, and overruled the motion. A motion was then made to dismiss the case on the ground that by the Constitution of the State, jurisdiction over cases of this description was vested in the District Com-ts, and for the reason that the amount claimed was over three hundred dollars. This motion was also denied by the Justice. The case was tried by a jury, a verdict rendered for the plaintiff, and a judgment for four thousand four *138hundred and fifty-nine dollars and fifty cents was entered by the Justice on the 2d day of November, 1864

The defendants below appealed from the judgment of the Probate Court of Storey County, and that Court dismissed the case for want of jurisdiction in the Justice. Prom this judgment Armstrong appeals to this Court.

It is not necessary to inquire in this case what may be the legal effect or consequence of the omission to place a revenue stamp upon the summons, or whether one may not be affixed by the Justice, as was done in this instance; because we hold that the objection to the summons on that ground came too late, having been first made some days after an appearance and answer by the defendants. We proceed therefore to determine whether the Justice had jurisdiction.

It is argued by the respondents’ counsel, that upon the adoption of the State Constitution in the month of September last, or if not then, upon the date of the President’s Proclamation admitting Nevada as a State, which was on the 31st day of October, 1864, that jurisdiction in actions of forcible entry arid unlawful detainer became vested, in the District Courts exclusively. The argument is based upon Art. VI, sec. 6 of the Constitution. This section is undoubtedly intended to confer this jurisdiction upon the District Courts; but, of course, it could not attach until such Courts should be created and operative. The Constitution must be so interpreted &s to give a practical meaning and efficacy to all its parts if possible. It will be seen upon examination of section 18 in the same article (Art. VI, sec. 18), that no judicial officer was superseded, nor the organization of any Court of the Territory changed, until the several officers provided for in that article should be elected and qualified. District Judges are officers therein designated. They were t.o be elected at the General election in November, 1864, and those then elected were required to qualify and enter upon the duties of office on the first Monday of December succeeding their election. (Con., Art. VII, schedule, sec. 1.) Certainly they had no power or authority to act as District Judges before their qualification as such. Again, the Constitution provides that all laws of the Territory, not repugnant thereto, should remain in force, etc. . (Con., Art. XVII, sec. 2, schedule.)

*139By these provisions, Justices of tbe Peace and their Courts^ and the statutes hitherto governing them, were continued until changed or superseded by the new order of things. This would leave no void nor delay in the administration of justice. But if the construction of respondents’ counsel were correct, there would be no Court in existence from October 31st to the 5th day of December following, to take cognizance of this case, or of any case of the like kind.

This is not reasonable. In whatever else the framers of the Constitution may have failed to provide against possible exigencies, they certainly are not chargeable with so great an oversight.

The purpose of section 6, Article VI, was not to suspend the operation of any portion of the laws of the Territory; the former judiciary system was intended to be, and was continued in existence until the new one should be in a condition to exercise its functions. It follows, therefore, that the Justice did not lose jurisdiction during the interval above mentioned, as counsel contend.

Aside from the common sense view thus taken by the Court, we are fully supported by authority. The identical question has been raised and decided in California since the adoption of the recent amendments to the Constitution of that State. In the matter of Carlos Oliverez, (21 Cal. 415), the point is discussed and determined.

Had the case rested here, the judgment of the Probate Court should be reversed without further comment. But the record, outside of the transcript from the docket of the Justice, shows that a further objection to the jurisdiction was raised, viz : that the Organic Act of the Territory limited the jurisdiction of Justices to demands not exceeding one hundred dollars ; and that the demand in this case exceeded that amount. As this question of jurisdiction is one that may be raised at any time, we cannot overlook this objection, notwithstanding it is not manifest at what stage of the proceeding it was made. Not appearing in the minutes of the Justice, we assume it was first advanced before the Probate Court.

In the Act of Congress organizing the Territory, it is provided that Justices of the Peace shall not have jurisdiction in *140any case where tbe title to land may be in dispute, “ or where the debt or sum claimed shall exceed one hundred dollars.”

It is claimed by the counsel of appellant that this limitation relates only to matters of contract, as money demands, and not to actions ex delieto, and consequently that the present action is not within the' purview of the Act. To sustain this position, we are referred to decisions made by the Supreme Court of California, wherein that Court has held that in actions of this character Justices of the Peace are not limited as to the amount of damages to be awarded, notwithstanding they are so limited in other actions.

It is unquestionably true that the Courts of that State have so decided in several instances; but it must be remembered that there was no Constitutional restriction imposed in California upon the Legislature in the grant of jurisdiction in this action to Justices of the Peace. On the contrary, the action of forcible entry, etc., was held in California as belonging to, that class of “ special cases ” mentioned in the Constitution of that State which the Legislature was at liberty to dispose of as its wisdom should dictate. Accordingly, the Legislature did lodge original jmisdiction over this “ special ” action in Courts of Justices of the Peace. And as no other Court liad original jurisdiction, it was necessary to the administration of full and complete justice that such Courts should possess the power to award damages commensurate with the degree and chai’ac-ter of the injury sustained by the complainant, although the amount might exceed the limit of their jurisdiction in other cases. (Vide Small v. Gwinn, 6 Cal. Rep. 449.)

Rut our Organic Act had not entrusted such power or discretion to the Territorial Legislature. Therefore, while we entertain great respect for the decisions of the Supreme Court of the State of California, we do not regard them upon this question as controlling authority.

From the language of the Act there i$ no escape. The Justice shall not have jurisdiction “ when the debt or sum clqwmed shall exceed one hundred dollars.” Can language be more explicit ? There is no exception; it embraces all cases cognizable in Justices’ Courts, whether they arise from contract or in tort. And upon reflection I am unable to see any good *141reason for the distinction claimed by counsel. Actions in tort are generally more complex and difficult to dispose of than actions growing out of such contracts as usually come before a Justice of the Peace. And when the law limits the jurisdiction in the more simple action to a certain fixed amount, it would reasonably follow a fortiori, that the law would equally limit it in the more complicated case. •

Í conclude, then, that as to the amount of damages claimed the Justice had not jurisdiction. Nevertheless, the Probate Court, in my judgment, erred in dismissing the case. The. action was for the possession of the premises — rof that matter the Justice had jurisdiction — and the plaintiff should -not have been turned out of Court without a trial. The prayer for damages might well have been disregarded or expunged without prejudice to the action or injuriously affecting any right of the defendants. The complaint set up a good cause of action, and should not have been dismissed for having contained a prayer for relief not within the jurisdiction of the Court. No damages need be stated or claimed.

The authorities so declare, as will appear upon examination. (Howard v. Valentine, 20 Cal. R. 282; Van Etten v. Jilson, 6 Cal. 19, 413-449; Holmes v. Horber, 21 Cal. 55.)

The judgment of the Probate Court will therefore be reversed. Ordered accordingly.

Justice Beatty having been of counsel did not participate in the decision..

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