Volume 23 — Nevada Reports

Holmes against tbe Iowa Mining Company. From the judgment rendered, defendant appeals. Heard on motion to dismiss. Tbe facts appear in tbe opinion.

Original proceeding. Application by the State, on the relation of George D. Pyne, against C. A. LaGrave, State Controller, requiring him to draw his warrant in favor of relator, as secretary of Company B, First Regiment, Nevada National Guard, for rent of an armory for the company. The facts appear in the opinion. * I. Section 11, Statutes of 1895, p. 109, is, if anything, an appropriation.

E. Cheney, District Judge: Action by C. P. Ronnow, et al., against Joseph Delmue, et al. Judgment for complainants, and defendants appeal. I. The judgment and decree is not supported by the complaint. The complaint states no cause of action, or any facts as existing at the time of the filing of the complaint, but as they existed some five months previous. (Fairchild v. King, 36 Pac. Rep. 649.) II.

the State .of .Nevada, Eureka county; .A,, L. Fitzgerald,.District.Judge: ,, , Action by-A. Laird against Michael Morris on an account stated-and, on-, an assigned-account for services rendered.

The facts sufficiently appear in-the opinion. I. It is not a question in this- appeal as-to‘whether or not the 'decision -of a majority- of the court in the former appeal (Edioards -v. Carson Water Co., 21 Nev. 469) is good' law, or as to whether or not this court-in subsequent oases involving the same legal questions and principles will be-bound by it, - but we claim and insist that this court is bound by the decis- ■ ion of the former court involving the same legal…

E. Mach, District Judge: Action by A. Livingston against John Wagner for the purchase price of goods. From a judgment for defendant and an order denying a new trial, plaintiff appeals. The facts sufficiently appear in the opinion. I. Both complaint and answer alleged a sale of the goods from Stein Bros, to Wagner. Each party to the suit was estopped by his pleading from proving a different state of facts from what he has alleged.

E. Gheney, District Judge: Action by Edward Wills against the Bank of Nevada for goods sold and delivered. Defendant had judgment, and plaintiff appeals. The facts sufficiently appear in the opinion.

E. Cheney, District Judge: Action by John J. Crosby against the North Bonanza Silver Mining Company. Judgment for plaintiff. From an order overruling a motion for new trial, defendant appeals. The facts sufficiently appear in the opinion.

E. Cheney, District Judge: Petition for writ of mandamus by the State, upon the relation of F. H. Norcross, against B. C. Shearer, as Auditor of Washoe county. The writ was denied and relator appeals. The facts sufficiently appear in the opinion. I. The district attorney, like all other county officers, derives no power or authority from the constitution. He must seek for his powers and duties in the statutes alone, and he is limited in his actions by the statute.

Byrnes and others against J. M. Douglass. Judgment for defendant, and plaintiffs appeal. Action of ejectment to recover possession of the Atlantic Consolidated Mining claim, and of a tunnel known as the “ Atlantic Consolidated Tunnel,” which begins some 300 feet from said claim, and runs into and through the same.

Original proceeding. Application by the State, on the relation of H. C. Cutting, Superintendent of Public Instruction, for mandamus against C. A. LaGrave, State Controller. The facts appear in the opinion. I. The words “ actual traveling expenses ” have been construed by all of respondent’s predecessors in office and by every legislature since the passage of the law to mean and to include necessary hotel bills.

F. Talbot, District Judge: Action by John Roeder against Charles Stein. Findings for defendant, and from an order refusing a new trial plaintiff appeals. The facts sufficiently appear in the opinion. I. The decision is against law. First: The original findings of fact are entirely outside of the issues made by the pleadings, and, consequently, no judgment or decree based upon them could be upheld.

■Original proceeding. Application by the State, on the relation of J. H. Sutherland, for a writ of mandate to compel Henry A. Nye, as Auditor of Storey county, to draw his warrant for a certain claim allowed by the Board of County Commissioners. The facts sufficiently appear in the opinion.

Mad, District Judge: Alfred Vaughan was convicted of murder, and appeals. The facts sufficiently appear in the opinion.

Original proceeding. Application by the State, on the relation of H. C. Cutting, as Superintendent of Public Instruction and ex officio Curator of the State Museum, against C. A. LaGrave, State Controller, for a writ of mandamus. The facts sufficiently appear in the opinion. I. What is the salary of the superintendent of public instruction, with his ex officio offices, under the present statutes? This is a question of statutory construction.

Mach, District Judge: John O’Keefe was convicted of an attempt to commit robbery, and appeals. The facts sufficiently appear in the opinion. I. The gist of an attempt to rob is doing some act towards this and failing or being prevented. If there is no overt act towards the accomplishment of the robbery resulting in failure or interception, there can be no attempt to rob, any more than if no property is taken from the person by violence there can be no robbery.

E. Cheney, District Judge: Suit by Thomas Orr against George C. Ulyatt and others to foreclose a mortgage. From a judgment exempting a homestead from the operation of a mortgage lien, and from the order denying a new trial plaintiff appeals. The facts sufficiently appear in the opinion.

<p>Presumptions on Appeal — Insufficient Record. — The plaintiff, as lieutenant-governor, sued to recover compensation for seventeen days’ service^ during which time he alleged he had acted as governor of the state. The answer denied that he had acted in that capacity for more than four days. Judgment was rendered in the plaintiff’s favor, and without statement on appeal, or motion for new trial, the defendant appealed: Held, that the presumption is that the court found that he had acted as governor for the time alleged, and that the evidence was sufficient to support the finding. (Syllabus by Bigelow, C. J.)</p>

E. Cheney, District Judge: Action by the State of Nevada against John T. Wheeler and Samuel Wheeler, partners under the firm name of . Wheeler Brothers. Judgment for defendants, and the State appeals. Action to recover $350 as license money due upon 7^000 head of sheep, and for $25, the statutory penalty for failing to procure the license in advance, under Stats. 1895, 53, the material portions of which act are as follows: “Section 1.

District Court of the State of Nevada, Lander county; A. L. Fitzgerald, District Judge: Action by George Watt against the Nevada Central Eailroad to recover damages for loss of property caused by fire from defendant’s engine. From a judgment for -plaintiff, and an order denying a new trial, defendant appeals. The facts sufficiently appear in the opinion. 1.

E. Gheney, District Judge: Action by the Board of Commissioners of Washoe county, for the use and benefit of the inhabitants of the town of Reno, against A. W. Griswold, to recover a license tax on his business of expressman. From a judgment in favor of defendant, plaintiff appeals. The facts sufficiently appear in the opinion.

Talbot, District Judge: Action by John H. Dennis against W. H. Caughlin, to contest the latter’s election to the office of Sheriff of Washoe county. From a judgment in favor of defendant, plaintiff appeals. The facts sufficiently appear in the opinion. I. The well-established rule is that, where the ballots have been preserved in accordance with law,, the ballots themselves are the best evidence of the number of votes cast and for whom cast.

L. Fitzgerald, District Judge: Action by J. C. Streeter against Hiram Johnson and others. Judgment for plaintiff, and defendants appeal. Tbe facts sufficiently appear in tbe opinion. I. Among the other safeguards provided in the chattel mortgage law of this state is a requirement that tbe mortgage shall be recorded in each of the counties in which the property is situated, otherwise the mortgage is declared invalid and void.

E. Cheney, District Judge: Action by J. H. Donlan against A. J. Clark. From a judgment for plaintiff, defendant appeals. In March, 1894, the plaintiff left with the defendant, a hotel keeper at Reno, Nevada, a trunk full of masquerade costumes and masks, in pledge for the payment of a board bill of $17, upon the agreement that, when the money was paid, they were to be sent to him, as he might direct.

E. Mack, District Judge: Action by Ida L. Gardner against James H. Gardner for divorce. From a judgment for plaintiff and from an order denying a new trial, defendant appeals. Tbe facts sufficiently appear in the opinion.

Original proceeding. Application for writ of prohibition by R. Schweiss against the First Judicial District Court of the State of Nevada in and for Storey county. Original application for a writ of prohibition. The petitioner was convicted in a justice’s court of the offense of keeping a saloon in the city of Virginia, wherein liquors were sold by the glass, without having obtained the license therefor required by an ordinance of said city.

Action by William Hayes against W. L. Davis and others. Appellant moves to restore an appeal which was dismissed. The facts appear in the opinion. I. The statement was never presented to the judge who tried the cause, as required by either sections 332, 333 or 335 of the practice act. (Gen. Stats., secs.' 3354, 3355, 3357.) II. After filing the notice of appeal in due time, the appellants filed the requisite undertaking and perfected their appeal.

E. Mach, District Judge: Action by Thomas McNamara, Jr., Michael McNamara, et al., against R. P. Keating and R. Pendergast. Judgment for plaintiffs, and defendants appeal. The facts sufficiently appear in the opinion. I. The plaintiffs, nor either of them, ever had a valid claim of any nature against the said Bailey, Alabama and Humboldt Mining Companies, or either of them.

Original proceeding. ‘ Application for writ of certiorari by William Thompson to the Second Judicial District Court of the State of Nevada, in and for Washoe county; A. E. Qheney, District Judge. The facts sufficiently appear in the opinion. I. Certiorari will not be allowed to usurp the functions of a writ of error, but will be restricted to inquiries of jurisdiction.

Original proceeding. Application by the State, on the relation of William Thompson and H. H. Beck, against the Board of County Commissioners of Washoe county, for a writ of certiorari. I. The respondent, board of county commissioners, in employing attorneys to assist the district attorney, did not exercise judicial functions. Its action therein-was purely executive, and is not subject to review upon certiorari.

F. Talbot, District Judge: Application of Samuel Davis for mandamus to the Board of County Commissioners of Lincoln county. Application denied, and petitioner appeals. Petition for writ of mandate to compel the defendants to levy a tax for the payment of interest upon the bonded indebtedness of Lincoln county, created by the act of February 17, 1873.

E. Mach, District Judge: Action by David Wilson against William Wilson, From a judgment for plaintiff, and an order denying a new trial, defendant appeals. The facts sufficiently appear in the opinion.

E. Mach, District Judge: Action by the State against George H. Meyers for the tax upon the difference between the assessor’s valuation and the valuation fixed by the board of equalization on defendant’s stock of merchandise. From a judgment in favor of plaintiff, and an order denying a new trial, defendant appeals. The facts sufficiently appear in the opinion. I. The presumption is at all times that the assessor has performed his duty.

E. Mack, District Judge: Action by Martin Lutz against William Kinney, Sheriff of Ormsby county. Judgment for defendant, and plaintiff appeals. The facts sufficiently appear in the opinion. I. The subscription of Martin Lutz is not necessary in the affidavit of mortgagor and mortgagee in the chattel mortgage in question. (3 Blackstone, 304, title, “Affidavit”; Bouvier’s, Kinney’s, Burrill’s and Tomlin’s Law Dictionaries; Am. and Eng.

E. Cheney, District Judge: Action by the State against the Virginia and Truckee Railroad Company, et al., to recover taxes assessed on the railroad for the year 1895. From a judgment for plaintiff, and an order, denying a new trial, defendants appeal. Action to recover taxes due for the year 1895, amounting to $5,369 10. The defendant made the statement to the assessor, required by the statute, valuing its railroad in Washoe county at $131,800.

E. Cheney, District Judge: Austin Gray and Frank Mclntire were convicted of burglary, and Gray appeals. The facts sufficiently appear in the opinion. I. The mere fact of the possession of stolen property is not sufficient to authorize a conviction'.

E. Cheney, District Judge: C. H. Zichfeld was convicted of bigamy, and appeals. The facts sufficiently appear in the opinion. I. Under our law no person, other than a minister of any religious society or congregation within this state who has obtained a license for that purpose, or any judge of the district court in his district, or justice of the peace in his county, is authorized to join persons together as husband and wife. (Gen. Stats. 473, 481, 486.) II.

<p>Counties — Lost Certificate of Indebtedness — Issuance of Duplicate— Injunction — Where an act of the legislature authorizes and requires the county commissioners to instruct the auditor of the county to issue to the owner of the original a certificate of indebtedness similar in amount and in lieu of one that has been lost, the issuance of the certificate cannot be restrained upon the ground that it is the creation of an unjust indebtedness against the county, or, in any just sense, an injury to taxpayers.</p> <p>Equity — When Court Will Not Exercise Its Equitable Powers. — A court of equity will not exercise its equitable powers to restrain a county from doing what any honest debtor should do, thereby relieving the county from the burden of having to pay a debt honestly owdng by the county.</p>

E. Mach, District Judge: Action by Florence M. Manning against J. E. Gignoux to recover a balance alleged to be due plaintiff for the care and support of defendant’s two minor sons, in which there was a judgment dismissing the action, and in favor of defendant for costs. From an order granting a new trial on the ground of newly-discovered evidence, defendant appeals. The facts sufficiently appear in the opinion.

L. Fitzgerald, District Judge: Action by Irene M. Robinson against Henry Kind and Eugene Howell to set aside a trust deed and for an injunction. From a judgment in favor of plaintiff, defendants appeal. The facts sufficiently appear in the opinion. I. This action was brought to set aside a so-called trust deed, executed by the plaintiff and James A. Church and E. D. Church to the defendant, H. Kind. The Churches were not made parties to the action.

<p>New Trial — Appeal prom Justice Court — Jurisdiction op District Court. — After a verdict rendered in the district court upon the trial of a case appealed from a justice’s court, the district court has jurisdiction, w'hen a proper showing is made, to grant a new trial. (Syllabus by Bigelow, C. J.)</p>

E. Cheney, District Judge: John Buster was convicted of murder, and appeals. The facts sufficiently appear in the opinion. I. Defendant’s motion to strike out all of the testimony of the witness Eugene Cozzens, as to the alleged confession, should have been granted. The defendant is an Indian, speaking and understanding but little of the English language. The witness Cozzens speaks English, but does not understand the Indian language.

<p>Instructions, Properly Denied — Evidence.—Instructions as to the law under a certain state of facts are properly denied when the uncontroverted evidence shows such facts do not exist.</p> <p>Contributory Negligence — Liability Eor Damage — Escaping Water Erom Irrigating Ditch. — The doctrine of contributory negligence does not apply in case of injury to land from the escape of water from a ditch, the owner of the ditch knowing of the defects therein, and being able to prevent the injury. Under such circumstances, no duty rests upon the injured party to avoid the consequences of the owner’s acts.</p> <p>Damage — Seepage Erom Ditch — Liability oe Owner. — The owner of an irrigating ditch is bound to keep it in good repair, and is liable for damage caused by seepage of water from it.</p> <p>Practice — Amendment oe Complaint — Discretion op Trial Court. — An amendment of .the ad damnum clause of the complaint, by increasing the amount claimed, is a matter within the discretion of the trial judge, and may be allowed during the trial.</p> <p>Idem — Record on Appeal — Error When Cannot be Determined. — The appellate court cannot determine whether or not error was committed by the trial court in excluding questions propounded to a witness, when there is nothing in the record to indicate what the proposed testimony would be.</p> <p>Injunction — Escaping Water — Prescriptive Right. — Where, in an action against the owner of a ditch, for escape of water therefrom onto the plaintiff’s land, defendants claim a prescriptive right, which would in time ripen into an adverse right, plaintiff prevailing is entitled to an injunction.</p>

Original proceeding. Application by the State, on the relation of C. H. E. Hardin, for mandamus to Reinhold Sadler, Lieutenant and Acting Governor of the State of Nevada. The facts appear in the opinion. I. The fact that the powers and duties of the office of governor, under the constitution, devolved upon respondent at the time of Governor Jones’ death, on April 10, 1896, did not thereby create or tend to create any vacancy in the office of lieutenant-governor.

Original proceeding. Application for a writ of certiorari, by the State, on the relation of Charles A. Jones, against Charles E. Mack, Judge of the First Judicial District Court of the State of Nevada, in and for Ormsby county. The facts sufficiently appear in the opinion. I. The offense charged in the indictment found by the state grand jury is an offense which is punishable under the laws of the United States. (U. S. Rev. Stats. 5319; Sharon v. Hill, 24 Fed. R. 726.) II.

E. Cheney, District Judge: Action by E. Reinhart & Co. against Company D, First Brigade, Nevada National Guard, and others. From an order refusing to set aside a default, and from a judgment in favor of plaintiffs, defendants appeal. Appeal from the order dismissed. The facts sufficiently appear in the opinion. I. The court erred in refusing to set aside and annul the default entered in this action.

Original proceeding. Application for writ of mandamus, on the relation of Eugene Howell, to compel C. A. LaGrave, State Controller, to draw a warrant in petitioner’s favor for his salary as Reporter of Decisions of the Supreme Court. The facts sufficiently appear in the opinion.

Original proceeding. Application by the state, on the relation of H. C. Cutting, ex officio Curator of tbe State Museum, for writ of mandamus to compel C. A. LaGrave, State Controller, to draw a warrant in relator’s favor for his salary as Curator of the State Museum. The facts sufficiently appear in the opinion. I.Relator had no such claim against the state as should have been passed upon by the board of examiners.

<p>Criminal Law — Courts Judicially Know Whisky to Be a Spirituous Liquor — Statute Complied Witi-i. — The designation of an offense in a complaint and recognizance as “ selling whisky to an Indian ” sufficiently complies with the statute which makes it an offense to “sell, barter, give or in anyway dispose of any spirituous or malt liquor, wine or cider of any description to an Indian within this state” (Stats. 1887, 37), it being within the judicial knowledge of courts that whisky is a spirituous liquor.</p> <p>Statute of Limitations — Bail Bond, an Instrument in Writing — Action on Barred in Six Years. — An action upon a bail bond is an action upon an obligation founded upon an instrument in writing, and is not an action upon a statute for a forfeiture or penalty to the state which must be commenced within two years after the right of action has accrued. The right of action is, therefore, barred by the six-year clause of our statute.</p> <p>Recognizance — Bail Bond — Time—Place and' Court, Nixed by Law. — A contention that a recognizance is void for the reason that no time, place or court is named therein is not tenable, as the law designates the time, place and court in which the defendant must appear and surrender himself in execution of the judgment.</p> <p>Filing of Recognizance — Record of Court. — Where the transcript on appeal shows that the recognizance was made a record by order of the court, and the complaint avers that it was filed, a contention that the recognizance is void, for the reason that it was never filed or became a record in the cause or court, is not tenable.</p> <p>Criminal Law — Practice—Recognizance or Bail Bond, How and When Forfeited. — Section 523 of the criminal practice act (Gen. Stats. 4403) provides when and in what manner a forfeiture of a recognizance shall be taken. It provides that “if, without sufficient excuse, the defendant neglect to appear for arraignment, or for trial or judg'ment, or upon any other occasion, when his presence in court may be lawfully required, or to surrender himself in execution of the judgment, the court shall direct the fact to be entered upon its minutes, and the recognizance * * * shall thereupon be declared forfeited.” This provision of the statute is mandatory. It does not require that the record must show that the defendant was called, neither is it necessary thereunder that the defendant should be called.</p> <p>Idem — Defective Record — Forfeiture of Bail Bond. — A record reading as follows: “ N ow, on motion of the district attorney, it is ordered that the bonds of Charles Murphy be and they are hereby declared forfeited,” is fatally defective in not showing the fact that the defendant neglected to appear upon some one of the occasions designated in said section 523 of the criminal practice act.</p> <p>Idem — Practice—Stay of Execution — Recognizance Given Before Appeal Taken. — The trial court has no authority to make an order staying the execution of a judgment of imprisonment, and no authority to release or order the release of a defendant, under recognizance, or otherwise, after judgment of imprisonment has been rendered against him, except after an appeal therefrom has been taken, and any recognizance given for that purpose at such a time is void.</p> <p>Idem — Appeal—Stay of Execution. — An appeal from a judgment of imprisonment does not operate as a stay of execution thereof, and the defendant, if in custody, must so continue, unless admitted to bail.</p>

E. Cheney, District Judge: Action by J. V. Peers, as administrator of the estate of Felix Monet, deceased, against T. A. Reed. From a judgment for plaintiff, defendant appeals. The facts sufficiently appear in the opinion. I. There is no law by which a taxpayer can redeem a portion of his property and not the whole; he is bound for the whole tax lawfully assessed to him. (Wright v. Cradlehaugh, 3 Nev. 348.) II.

L. Fitzgerald, District Judge: Action by W. H. Sweeney against P. H. Hjul to contest the latter’s election to the office of Sheriff of Eureka county. From a judgment in favor of plaintiff, defendant appeals. The facts sufficiently appear in the opinion.

E. Mack, District Judge: Action by the State against the Virginia and Truckee Railroad Company to recover the taxes as assessed on its property in Storey county for the year 1895. From a judgment for plaintiff and an order denying a new trial, defendant appeals. The facts sufficiently appear in the opinion.

<p>Original proceeding. Application for mandamus by the State, on tbe relation of Joseph Ryan, against James Cronan, Writ issued.</p> <p>The facts sufficiently appear in the opinion.</p> <p>I. The evidence shows, without any conflict, that at all of the meetings of tbe stockholders mentioned there was a majority of stock present, answering at the roll call.</p> <p>II. There is no provision in the laws of California, or in the by-laws of the company, giving the chairman of the stockholders’ meeting any power whatever except to preside, and, in case of a tie, to give the c'asting vote.</p> <p>III. The by-laws, having prescribed the duties and powers of the chairman, are prohibitory of tbe exercise of any other power upon tbe principle “ Expressio unius exclusio alterius.” (Am. and Eng. Ency. Law, vol 17, p. 87-9.)</p> <p>IV. No case can be found in which any such power as was exercised at the meetings of March 10th and 17th, by Mr. Fox, has been sanctioned.</p> <p>V. Section 312 of the civil code of the state of California is itself conclusive of the powers of the chairman. That section provides in very clear language that a stockholders’ meeting, called for the purpose of electing a board of directors, shall not adjourn for any cause, except from day to day or from time to time, and then only when for any reason there is not present a majority of the subscribed stock or members, or no election had. The stockholders themselves were by this provision of the code prohibited from adjourning, there being a quorum present.</p> <p>VI. The chairman of the meeting having by his action ceased to be chairman of the meeting, the stockholders had it in their power, which they exercised, to organize and proceed with the business for which they were called together.</p> <p>VII. It will be seen, from the civil code and the by-laws of the Hale and Norcross Silver Mining Company, that the powers of the president of the Hale and Norcross Silver Mining Company, as chairman of a stockholders’ meeting, called for the purpose of electing a board of trustees, are limited to presiding at the meeting, and that he has no power other or greater than any other stockholder at such meeting, except in case of a tie, to give the casting vote. Neither the board of trustees, nor the president, nor the stockholders themselves, have any power to postpone an annual election of a board of trustees, their term being fixed by law.</p> <p>VIII. Notwithstanding the laws of the state of California, and directly contrary to the by-laws of the company, the president of the Hale and Norcross Silver Mining Company, without any motion being made to that effect, without any action or proposed action of the stockholders, and against their desire, arrogated to himself the power of adjourning the stockholders’ meeting on March 10th, upon the pretense that it was by an order of court, which order, the evidence shows, was made by his procurement.</p> <p>IX. This order of court was dissolved on March 17th, and the stockholders again met on that day at the hour to which that meeting had been adjourned by the stockholders themselves, it being the same time as fixed by the court, and a quorum being present, as ascertained by calling the roll, the president of the company, in defiance of the law, the decision of the court, and the by-laws of the company, again adjourned the meeting without day, refusing to entertain any motion or to allow the stockholders any voice whatever in the meeting. He assumed the power to try and decide for himself the right of the legally appointed proxies of the stockholders to represent their principals, and did decide without any proof being made of any fact upon which a decision could be based. No contest was made by any one claiming the right to represent any of the stock. No protest was made by any one against the right of those present to vote. No proofs were made, but the president, of his own motion, instituted an inquisition as to the rights of property.</p> <p>X. Section 312 of the civil code was enacted for the very purpose of preventing such inquiries at an election, leaving to the parties aggrieved the right to petition the courts, as provided in section 315, and to right any wrong suffered by any stockholder whether present or absent.</p> <p>XI. The answer of the defendant in this case rests upon the alleged power of the chairman to rule as he did, and if, as I have shown, he had no such power, the relator is entitled to the enjoyment of his rights as superintendent of the company. The defendant has no color of right to the position which he holds, for the reason that the term of office of the board which elected him has expired, and a new board has been elected, which elected relator to that position.</p> <p>XII. The laws of California having provided a remedy for any stockholder aggrieved at any vote cast at an annual election for a board of directors, no attack can be made upon any vote cast at the election held on March 18, 1897, except in a proceeding under section 315. This special remedy, being provided for this special purpose, is prohibitory of any other, and an election cannot be attacked in any collateral proceeding.</p> <p>XIII. In the Market-street Railway case, 109 Cal. 571, it was settled that stock may be voted by trustees who not only appear upon the books as such, but are really and in fact trustees for other persons, and that the trustee is the legal owner of the stock, and as against the corporation and all the world, except his cestui que trust, no inquiry may be had touching his action in the premises.</p> <p>I. Mr. Fox, as chairman of the meeting, under our advice as attorneys for him and attorneys for the corporation, ruled and decided that no stock issued in the name of trustees without designating for whom the party held the stock in trust, both upon the certificate and upon the hooks of the corporation, could be recognized as stock votable at said or any election held by the corporation. Mr. Fox unquestionably, under the - laws of this state, as determined by the supreme court of California, in the case of Smith v. S. F. & N. P. R. R. Co., 47 Pac. Rep. 583, had the right, in the first instance, to determine whether or not the stock which was offered to be voted was such stock as could or should be voted at that election.</p> <p>II. If the stock presented by Mr. Grayson should not have been voted, as we contend, then it was the duty of Mr. Fox to declare the meeting adjourned, since it is evident that all the stock of the corporation, with the exception of about 2,800 shares out of 112,000 shares, could not be voted at all.</p> <p>III. We now ask the question: Could the stock of this corporation stand in the names of persons as trustees, when neither from the face of the certificate nor from the hooks of the corporation did it appear for what particular person or persons the stock was so held in trust? We assert that, by the laws of this state concerning its own corporations, stock so issued could not be voted at an election held for the purpose of electing directors for a corporation.</p> <p>IV. The sections of the code referred to by counsel for petitioner relate to corporations generally, and can have no application to this case, because, by a law subsequently passed referring specially to mining corporations, the matter of the issuance of stock and voting the same is particularly declared, and the rule established to be other and different from that of corporations generally.</p> <p>V.. By the very words of this section (sec. 2, act approved April 23, 1880) it is evident that in all cases stock in mining corporations shall stand in the books of the company in the name of the real owners of such stock, but if issued in the name of trustees, then the party for whom he holds such stock in trust must be designated upon the books and also in the body of the certificate of said stock. It is admitted that the majority of the stock of this corporation has been issued contrary to the requirements of this section of the statute which we have quoted, but it is contended that notwithstanding the stock has been so issued in disobedience to the requirements of the law, yet the persons in whose names that stock stands upon the books of the company as trustees have the right to either vote the same or give proxies to others to vote the same; in other words, that this section of the law can be made, by the parties themselves having this stock so unlawfully issued, a dead letter, they claiming all the rights that they would have had the stock been lawfully issued in accordance with this section.</p> <p>VI. The supreme court of the state of California has not to our knowledge passed upon or construed this section of the statute. If, however, the construction given to this statute by Superior Judges Sea well and Belcher is a correct one, then Mr. Fox’s action in declining to receive the votes or proxies tendered by Mr. Grayson is fully sustained by the law, and it was his duty to declare that no election could be held, and to declare the right of himself and his associates to continue to perform the duties of directors of the Hale and Norcross Silver Mining Company.</p> <p>VII. If they continued rightfully to perform such duties, then, of course, it was within their power to retain Mr. Cronan as superintendent of the corporation, and the action of Mr. Grayson and his associates in appointing Mr. Ryan was without authority of law, and gave to him no rights whatever as superintendent of the. Hale and Norcross Mining Company.</p> <p>VIII. Under the décision of the supreme court of Nevada in the Curtis case (3 Nev.) this proceeding cannot be maintained, for it appears that the defendant Cronan has a color of right to the position which he holds. If the facts of this case, and the law to which we have called attention, do not show a color of right, then it is difficult to understand the meaning of that term. The facts of this case, and the law to which we have called the attention of the court, go far beyond establishing a mere color of right; they, in our judgment, establish an unquestioned right in the defendant to hold the position which he holds as superintendent of the company, by virtue of his appointment during the year 1896.</p> <p>IX. The proceedings should be dismissed for want of jurisdiction, and, if not dismissed, then judgment upon the merits should go in favor of the defendants.</p>

E. Mach, District Judge: Suit by G. N. Folsom against S. H. Marlette. From a judgment in favor of plaintiff, and from an order denying a new trial, defendant appeals. The facts sufficiently appear in the opinion. I. The action is for an accounting of the copartnership business of Marlette & Folsom.

Original proceeding. Application by the State, on the relation of Florence M. Kieth, for a writ of mandamus to compel W. J. Westerfield, State Treasurer, to pay a warrant in relator’s favor, drawn by the State Controller. The facts sufficiently appear in the opinion. I. The primary object of our constitution in regard to education is to provide an education for all the children of the state. It excludes no class.

E. Cheney, District Judge: Action by E. L. Alexander against Theodore Winters and others. From a judgment in favor of defendants, plaintiff appeals.