Volume 27 — Nevada Reports

Application by John W. Wright for a writ of mandate against the Board of County Commissioners of Washoe County and others to compel defendants to recount ballots in an election contest. The facts sufficiently appear in the opinion.

F. Made, Judge. Adamo Buralli was convicted of murder in tlie first degree, and he appeals. The facts sufficiently appear in the opinion. I. The fourth assignment of error, to wit: The court erred in overruling defendant’s demurrer and motion before plea to set aside the indictment,” we will first consider.

<p>Indian — Intoxicating Liquor — Sale—Attempt to Sell — Conviction—Statutory Provision.</p> <p>1. Cutting’s Compilation, sec. 4377, providing that.in all cases the defendant may be found guilty of an attempt to commit the offense charged, applies to all cases then or thereafter defined by statute, and therefore one charged under a later statute with selling liquor to an Indian may he convicted of an attempt to commit that offense.</p>

Certiorari by the State of Nevada, on the relation of George Watt, against the Third Judicial District Court of the State of Nevada and others, to review an action in which petitioner was defendant and one Easton plaintiff. The facts sufficiently appear in the opinion. I. The writ was granted in this case returnable on the 17th day of this month. On that day the case was argued before this court.

<p>Mandamus by the State of Nevada, on the relation of H. W. Miles and others, as the Board of School Trustees of Delamar School District, No. 18, in Lincoln County, against Sarah Wedge, as County Superintendent of Public Schools of Lincoln County. On demurrer to respondent’s answer to an alternative writ.</p> <p>The facts sufficiently appear in the opinion.</p> <p>I. The duty of the several county superintendents of schools is prescribed by statute. These duties ascribe to the county superintendent both judicial and ministerial functions. There are occasions when judgment and discretion control the duty, but in the main the county superintendent acts according to the prescribed letter and spirit of the statute. One of the duties of the county superintendent is to make the apportionment for the support of the schools of the several districts within his particular jurisdiction. The law prescribes how that apportionment shall be made and upon what basis the respective amounts shall be estimated. The legislature has enacted that a census marshal shall be appointed who shall file a printed return of the number of children between the ages of six and eighteen years residing within his particular district. If the county superintendent should be dissatisfied, for any reason, with the return of any census marshal, the law imposes a duty in the nature of a privilege empowering the said county superintendent with the right to order a retaking of the census. If no new census is ordered, the statute makes it absolutely obligatory upon the county superintendent to make the apportionment as prescribed by law. A refusal to do so is a violation of duty and a breach of the law.</p> <p>II. The answer admits that respondent failed to order a new census taken. The answer admits that respondent was advised by officials competent to advise her, and from whom she was duly authorized to secure advice, to retake the census of said district, but, upon further advice from the state superintendent of public instruction, respondent did not retake said census.</p> <p>III. This honorable court has established these principles of law as applicable to cases like the present. (1) The presumption of the law is that the census marshal did his official duty and that his report is correct. (2) If the return of the marshal did not correctly report the number of children in the district, the statute provides a remedy and mode of securing a correct census. (3) That if the above remed3r be not resorted to, the court, and all concerned in the case, are bound by the said return of the census marshal. (State v. Siveeneij, 24 Nev. 350.)</p> <p>We will devote ourselves to the relators’ demurrer. Commencing at note "b” they say: "The said answer admits that respondent failed to order a new census taken, and, therefore, said census marshal’s return is confessedly the only return upon which the appraisement could be legally based.” In the first denial of respondent’s answer, she sa3rs she denies that the census marshal’s return of the school children between the age of six and eighteen 3rears of Delamar school district No. 18 is a legal census return as is required by the laws of this state made and provided, taken by Mr. Edward Shier in May, 1902. In justification of this denial, respondent alleges that she knew of her own knowledge that two of the children recorded in said census return, alleged therein to be residents of said school district, are residents of another district. Now, I ask the court was not this young lady justified, the ver3r moment she discovered that the document she was called upon to operate was branded with the marks of fraud — I ask you: Was she not justified in repudiating it?</p>

<p>Application of W. L. Wallace for a writ of review and stay of proceedings against the Mayor and City Council of the City of Reno.</p> <p>The facts sufficiently appear in the opinion.</p> <p>I. The attention of the court is called to the fact, that the petition on file states facts sufficient to allege that respondents are a de facto board within the meaning of the law, and as such are exercising its functions, and their acts are therefore liable to review by this honorable court. (Cole v. Kegler, 19 N. W. 843.)</p> <p>II. A de facto officer is one whose acts, though not those of a lawful officer, are valid as far as they affect the interest of the public and third parties where the duties of the office are exercised under color of a known election or appointment, until such time as they shall be declared usurpers bjr a court of competent jurisdiction.</p> <p>III. The laws of Nevada give to the supreme and district courts concurrent jurisdiction to issue writs of review, and do not require that an application to the supreme court for such original writ must be accompanied by any affidavit showing why the application was not made to the district court.</p> <p>IV. The powers of city councils are confined to those expressed in their charter. (City of Leavemvorth v. Norton, 1 Kan. 432; Loto v. City of Marysville, 5 Cal. 214; Ryle y. Milan, 8 Ind. 34.) Or by necessaiy intendment or implication. (Class v. Ashbury, 4 Cal. 571; Cottman v. San Francisco, 20 Cal. 96.) City charters are to be strictly construed. (Leonard v. City of Canton, 35 Miss. 189.) In what manner must a city council act! Municipal corporations in the exercise of these powers must act either by resolution or ordinance. (Beach on Public Corporations, vol. 1, 551-3.) Their actions are not effective without an ordinance. (Radvmj v. West, 60 Ind. 871.)</p> <p>V. Counsel for respondents claim that the statute gives to the board of city council complete discretionar,y power; but we submit that all that is conferred upon them is the right to enforce their powers in the exercise of a sound discretion and with due regard to the constitutional rights of the citizen. (Kirkham v. Russell, 76 Va. 956.) The corporation cannot take to itself airy powers merely b3r implication as they are properly the creatures of legislation having no powers except what are conferred upon them lw their charter. Their charters are the breath of their existence: thejr are what give them life, and they must live and act according to the rules laid down for them in those creative instruments, and other rules laid down by the power which created them. The grant of power to them by such acts is limited and subjected to a strict construction. (Oity of Leavenworth v. Norton, 1 Kan. 432; 1 Clarke Ch. Rep. p. 230.) The facts upon which a revocation of petitioner’s license was based must also appear by the record and must be embodied in the motion or resolution revoking the same. (State v. Dwyer, 21 Minn. 512.)</p> <p>I. It appears upon the face of the petition asking for the issuance of a writ of review of the proceedings of the city council of the city of Reno, that petitioner does not concede that said board of city council was a legally constituted board. Regarding the fact that the legal existence of said board is controverted by the allegations of said petition there can be no mistake. We contend that, if the said board had no legal existence, and only pretended to act, 3rour honorable court would have no jurisdiction to review the proceeding of a board of such description. In such a case there would be no proceedings to review. New York laws of 1893 providing that the refusal of an excise board to grant a liquor license ma3r be reviewed on certiorari do not grant a review where the board has considered the application on its merits. (People v. Truman, 23 N. Y. Supp. 913.)</p> <p>II. The petition should show that the applicant has rights, or a valid defense, of which he has been deprived b3' the erroneous action of the inferior court, or that, without fault or want of diligence on his part, he has been unable to present his rights or defense. (Gulf li. Go. v. Odom, 16 S.W. 541.)</p> <p>III. Where the lower tribunal has jurisdiction of the proceedings, any error in its conclusions as to facts not affecting its jurisdiction is not reviewable on certiorari. (Barber v. San Francisco, 42 Cal. 630.) Certiorari will not lie to review the action of the district court, in revoking a permit, to sell liquor, as any error committed can be corrected by an appeal. (State v. Schmidts, 22 N. W. 673.)</p> <p>IV. On the merits of the case see 63 111. 444; 5 Gray, 597; 103 Mass. 70; 12 Pick. 183-194, 13 Wend. 325; as to the power of the legislature in general to take away licenses, see People v. Comm., 59 N. Y. 92.</p> <p>Y. The law under which the board of the city council of the city of Reno acted in revoking the retail license of W. L. Wallace (Stats. 1903, p. 80) provided for the revoking of such license by the board of county commissioners where there is reason to believe that a business licensed is a nuisance, a menace to public health or detrimental to the peace or morals of any community in the county in which such business may be conducted; provided, that such revocation, withdrawal or discontinuance of such license shall when the action is taken on motion of, or at the instance of a member of the board be bjr unanimous consent of the members of such board, and section 3 of the same act makes such act applicable to all licensing officers, town boards and city trustees and to the city council or board of aldermen of any incorporated city, town or municipal government within this state. Hence, our contention is that section 3 of said act confers upon said board of city council the same authority to proceed in a summary way to revoke licenses that section 1 confers upon a board of county commissioners.</p> <p>I. Respondents contend and seem to depend upon the fact that the petition alleges that the said board had no legal existence, and only pretended to act, and that therefore this honorable court would have no jurisdiction to review the proceedings of a board of such description. Again citing your honors to the brief of relator, filed at your suggestion on the day of the hearing, we add: "An officer de facto is one who performs the duties of an office with apparent right and under claim and color of an appointment, but without being actually qualified in law so to act.” (37 Me. 433.)</p> <p>II. Counsel for respondents evidently agrees with us when he says that we are entitled to have redress by certiorari and cites Taeher v. Chosen Freeholders, 1 N. J. Eq. 282. Summing up, attorney for respondents cites several decisions "on the merits of the case” as to the power in general to take away licenses, which we respectfully submit are at this time premature.</p>

; W. 1). Jones, Judge. Action by W. J. Tonkin against Maggie Winzell and' others. From a judgment awarding plaintiff damages and certain title to water, and an injunction, defendants appeal. The facts sufficiently appear in the opinion. I. The refusal of opportunity to prepare for trial is an abuse of discretion. Parties will not be forced to trial without a reasonable opportunity to prepare therefor.

Mandamus by Chas. Wonacott against Peter Rice and others to compel respondents, as Commissioners of Nye County, to provide proper rooms for the District Court. I. If the section involved in this case can be so construed as to sustain the act without doing violence to the language, that construction must be adopted.

<p>Mining Locations — Veins—Right to Follow — Trial—Harmless Error-Verdict — Impeachment—Affidavit of Jurors — Appeal.</p> <p>1. Where there was substantial evidence on each side, so that the jury could have adopted the theory of either party, according to the view they may have taken of the testimony, the court on appeal will not disturb the judgment for insufficiency of the evidence.</p> <p>2. Rev. St. U. S. sec. 2322 [U. S. Comp. St. 1901, p. 1425],provides that locators of mining claims have the right of all the surface included within the lines of their location, and of all the veins; lodes, and ledges throughout their entire depth, the top or apex of which lie inside such surface lines extended downward vertically, although such veins, lodes, and ledges may so far depart from the perpendicular in their course downward as to extend outside the vertical side lines of said surface location; but that their right to the possession of such outside parts of such veins, lodes, or ledges shall be confined to such portions thereof as lie between vertical planes drawn downward as above described through the end lines of their location so continued in their own direction that such planes will intersect such exterior parts of such veins or ledges.” Held, that the right of an owner of a hiining location to follow a lodge beyond his side line is limited to the right to follow the ledge downward — that is, on its dip — and he has not the right to follow it laterally or along its strike; and if there was in defendant’s location the apex of a ledge which left his location by crossing its easterly side lino, and entered plaintiff’s location bj' erossilig its westerly end line, and the ledge turned from defendant’s location and entered plaintiff’s at such an angle that the portion there could not be reached from defendant’s location W’ithout following the ledge laterally, or on its strike, the defendant could not extract ore from that portion.</p> <p>8. It defendant entered upon a ledge having its apex within the exterior boundaries of plaintiff's location, and extracted ore therefrom between planes drawn vertically downward through the end lines of said location, the right of the plaintiff to recover damages for such acts ' would not be affected by proof merely that the place fi'om which such ore was extracted could be reached by going continuously through ledge matter from a ledge having its apex within the exterior boundaries of a prior location belonging to the defendant, but it must further appear that such passage from the apex of defendant’s ledge is made continuously downward on the dip’of that ledge; and if any portion of such jiassago must necessarily be made either upward, or laterally along the strike, then the plaintiff’s right to recover is not affected.</p> <p>4. In an action for taking ore from plaintiff’s location the evidence showed that defendant had made a net profit of $60,000, and that twenty-nine thirtieths of ore mined was taken from plaintiff’s ground. The verdict for plaintiff was for $48,000. Held, that any error in an instruction on the measure of damages was harmless.</p> <p>r>. It is -not necessary that the veins apexing in a mining location pass through both end lines of the location in order to entitle the owner to follow the dip.</p> <p>6. An instruction to the contrary was harmless error, where no question touching the right to follow the vein or to the possession of the ore depended on the qualification that the deposit should pass through both end lines of the claim, but w'here the controlling Issue was whether the claims of the parties were on the same ledge, and that issue had been clearly defined to the jury.</p> <p>7. The affidavits of jurors to the effect that the verdict was reached by averaging estimates by each juror could not bo received to impendí the verdict.</p> <p>Fitzgerald, ,T., dissenting.</p>

F. Curler, Judge. Action by Thomas Kennedy against Minnie P. Kennedy. From a judgment for plaintiff, defendant appeals. On petition for reliearing, The facts sufficiently appear in tbe opinions. I. Tbe defendant moved for a new trial upon the grounds of newly discovered evidence, error in law occurring at tbe trial, that tbe decision is not supported by the evidence, and that the evidence is against law. Tbe motion was denied.

]?. Curler, Judge. Proceedings for the settlement of the estate of John J. Quinn. Held: the whole of the Arcade Hotel and lots as her own, then one-half the value and income of said hotel property should be deducted from his other real and personal property and added to the share of his other three children, Addie Merchant, Frank and Minnie Quinn.

Affeal from the District Court of the Third Judicial District of the State of Nevada, Eureka County; IF. J). Jones, Judge. Action by J. C. Ennor, revived after his death in the name of Sara P. Ennor, as special administratrix, against J. P. Raine. From a judgment in favor of defendant, on a counterclaim, plaintiff appeals. The facts sufficiently appear in the opinion. I. The action of the plaintiff is sound in tort; it is an action at law for trespass, quare clausum fregit.

F. Talbot, Judge. Action by N. Eager against C. A. Mathewson. From a judgment in favor of plaintiff, defendant appeals. The facts sufficiently appear in the opinion. I. There is not a case in the books where a defaulting vendee has been permitted to recover forfeit money from a vendor who is not in default, except by consent of the latter.

A. Gamble and F. T; Oliadbourne against the District Court of the First Judicial District of the State of Nevada, Esmeralda County, and M. A. Murphy, the Judge thereof. The facts sufficiently appear in the opinion. I. No affidavit was required to show the disqualification of the honorable judge of this court.

Application by the State,.on relation of the City of Reno, against D. B. Boyd, as Treasurer of the County of Washoe, for a writ of mandate. The facts sufficiently appear in the opinion. I. The ninth subdivision of section 20 of the act incorporating the city of Reno is unconstitutional. It violates section 17, article IV, of the constitution.

Election contest by H. R. Lemaire against P. Walsh over the office of Long Term Commissioner of the County of Lander. From a judgment in favor of contestant, contestee appeals. Held: in the case of State v. Sadler, 25 Nev. 179, that such accidental marks do not invalidate a ballot otherwise free from objection. The learned counsel would have the court overrule its self on authority of the case of People v. Gampbell, 138 Cal. 20.

F. Ourler, Judge. Robert L. Burns was convicted of robbery. From an order denying a motion for new trial, defendant appeals. The facts sufficiently appear in the opinion. Held: subject to the discretion, order and direction of the trial judge having jurisdiction of the proceeding, who, upon sufficient proof, shall order it returned to the owner thereof at the proper time. II.

Original proceeding. In tbe matter of the application of William (4. Boyce for writ of habeas corpus. The facts sufficiently appear in the opinion.

F. Curler, Judge. Action by Eugene Griswold against C. T. Bender, administrator of the estate of Warren D. Epperson, deceased. From an order rejecting his claim against the estate, an order dismissing his suit against the estate as represented by its guardians ad litem and sole heir, and an order dismissing his suit against the administrator, plaintiff appeals. I. Section 2897, Comp.

F. Ourler, Judge. Action by Frank Golden against J. C. Murphy, e.t al. From an order granting a new trial, defendants appeal. Petition for rehearing denied. The facts sufficiently appear in the opinion.

J. Bonnifield, Jr., Judge. Action by Peter Roberti against J. P. Anderson. From a judgment in favor of plaintiff, defendant appeals. The facts sufficiently appear in the opinion. I. The evidence herein cited shows that the plaintiff was in no manner deceived by the defendant with reference to the disposition of said horse and that the plaintiff voluntarily assumed the risk incident to the breaking of the .young horse to a mower.

A. Murphy, Judge. Judicial settlement of the final account of Jerome Bowman, administrator of the estate of Samuel W. Bowman, deceased. From a decree allowing the final account, William Bowman and others appeal. The facts sufficiently appear in the opinion.

AppeaXj from tbe District Court of tbe Second Judicial District of tbe State of Nevada, Washoe County; M. A. Murphy, Judge. Action by Fannie Painter against Emma Kaiser. From a judgment for defendant, plaintiff appeals.

A. Murphy, Judge. Action by Lillie Esden against Emma Kaiser. From a judgment for defendant, plaintiff appeals. The facts sufficiently appear in the statement of facts in the case of Painter v. Kaiser (page 421 of this volume), involving precisely the same issues and questions.

A. Murphy, Judge. Action by Mary Kent against Emma Kaiser. From a judgment for defendant, plaintiff appeals. The facts sufficiently appear in the statement of facts in the case of Painter v. Kaiser (page 421 of this volume), involving precisely the same issues and questions.

¿7. Mack, Judge. Action by William Barnes, by T. J. Barnes, his guardian ad litem, against the Western Union Telegraph Company. From a judgment in favor of plaintiff, defendant appeals. The facts sufficiently appear in the opinion. I. The damages in this case are remote and contingent and have no connection whatever with the delay in the delivery of the message.

J. Bonwi field, Jr., Judge. The defendants were convicted of murder in the first degree, and appeal. The facts sufficiently appear in the opinion. I. The admission in evidence of the photographs of the dead body of Jack Welsh, and of the amputated and mutilated portions thereof, to wit, Exhibits B, C, D, and E, was such error as demands a new trial. The evidence shows that the photographs were not the best evidence for any purpose for which they were offered.

Petition by the State, on the relation of H. C. Dangberg, for writ of mandate against the Board of County Commissioners of Douglas County, to compel the vacation of a road. On demurrer to petition. The facts sufficiently appear in the opinion.