Volume 5 — Nevada Reports

This was an original proceeding in the Supreme Court, for a writ of mandamus upon William K. Parkinson, the Controller of State. The facts are stated in the opinion. I. If there is any ambiguity in the constitutional provisions, the law must be upheld. (Sedgw. on Const. Law, 482; 17 Cal. 551.) II. The principal and interest are both payable directly out of the treasury by appropriation made, and therefore no constitutional debt is incurred.

In May, 1868, Eugene Archambeauld presented himself at the hay-yard of Jens 0. Sorrensen in Carson City, represented that he had purchased a six-horse team, and made an arrangement with-Sorrenson to have the animals fed there, agreeing to pay the charges therefor on the first of every month.

<p>Errors not Properly Presented will not be Regarded. Where a transcript on appeal in a criminal case contained no bill of exceptions and no statement either certified by the Judge or agreed to by the attorneys: Held, that there was nothing for the consideration of the Appellate Court but the indictment, the minutes, and the instructions.</p>

This was an action of ejectment, commenced on May 3d, 1867, by Robert Robinson, Willard B. Farwell, and William V. Wells, against the Imperial Silver Mining Company,-Greentree, and -McKay, to recover possession of a rectangular piece of land, two hundred and fifty yards from east to west, and three hundred yards from north to south, on the Carson River, in Lyon County, upon which was situated the Rock Point Quartz Mill, together with the mill and water flowing to it for its…

The land referred to in the opinion was the northwest quarter of the northeast quarter, and the northeast quarter of the northwest quarter of section sixteen, in township seventeen north, range nineteen east, in Washoe County. The wood remaining on the land, and to restrain the removal of which the injunction was granted, was alleged to consist of one hundred cords, worth three dollars per cord.

1 This was an action of replevin for the cordwood referred to in the opinion.

This was an action of ejectment for a lot of land in Virginia City. The facts aré stated in the opinion. on the point that the affidavit for publication of summons was insufficient, cited JRiclcetson v. Riohard-son, (26 Cal. 149) ; Forbes v. Hyde,■'(!*> 1 Cal. 342) and Pollard v. Wegener, (10 Wis. 574) and on the point that an order of publication made in. advance of the issuance of summons was a nullity, he cited People v. Huber, (20 Cal. 81).'

Appeal frpm the District Court of the Eighth Judicial District, Esmeralda County, . This was an action commenced January 25th, 1868, by Z. B. Tinkum and Sidney ITuntoon, partners doing business under the name and style of Tinkum & Huntoon, against John D. 'Winters and William T. O’Neale, partners, doing business under the name and style of Winters & O’Neale, to recover the sum of one thou- . sand fo.ur hundred dollars for lumber sold and delivered.

<p>Appeal from the District Court of the First Judicial District, Storey County.</p>

On February 9th, 1864, the Legislature of Nevada Territory granted to John B. Watson and his assigns the right to construct and maintain a telegraph line from Unionville by way of Star City, Austin, Virginia City, Gold Hill, and Carson City, to the State of California, by a route north of Lake Bigler, (Stats. 1864,-97). Watson assigned to H. W. Oarpentier, who assigned to the California State Telegraph Company.

INFORMATION in the nature of quo warranto, to the Supreme Court. The Act creating the County of White Pine and providing for . its organization (Stats. 1869, 108) was passed by the Legislature on February 23d, 1869, and afterwards became a law by remaining in the hands of the Executive more than five days after its passage without his disapproval.

The defendant was indicted at the September Term, 1868, of the Court below, for the murder of John H. Walker, committed in Lander County on July 29th, 1868, by shooting with a gun. The trial came on at the same term and resulted in a conviction for murder in the first degree. Motions in arrest of judgment and for a new trial having been overruled, the defendant appealed.

This was an information filed in the Court below on September 21st, 1868, on behalf of Ford against Hoover, who was in possession and receiving the tolls of the road in controversy.

This action was commenced on April 21st, 1868, to recover the sum of five thousand four hundred and eighty dollars and eighty-three cents, principal and interest, on eight promissory notes, and a bill for furniture, sold and delivered, and accruing interest on the principal sum of one thousand eight hundred and twenty-four dollars and sixty cents, at the rate of five per cent, per month.

<p>Habeas Corpus — Right to Issue Writ. A State Court or Judge, duly authorized by the laws of the State, may issue the writ of habeas corpus in any ease where a party is imprisoned within its territorial limits, provided it does not appear when the application is made that the person imprisoned is in custody under the authority of the United States.</p> <p>Duty op Officer to make Return to Writ. It is the duty of any person having the custody of a prisoner to make known by a proper return to a Court or Judge issuing a writ of habeas corpus to him, the authority by which he holds such person in custody; and this duty applies to a United States Marshal in response to a writ from a State Court or Judge.</p> <p>State Courts not to Interfere with: Jurisdiction of United States Courts. In every case where process regular upon its face has been issued from a United States Court having power to issue process of such a nature, the officer while acting thereunder is fully protected against any interference from a State Court; and such State Court, when judicially informed of the existence of the process, cannot go behind the same to make any further inquiry.</p> <p>Presumptions in favor of Proceedings of United States District Court. A District Court of the United States has the power to find, through its grand jury, an indictment for any offense within its jurisdiction; and as to any matter ■within such jurisdiction, it is not an inferior Court; and the presumptions are in favor of the regularity of its proceedings.</p> <p>State Jurisdiction on Habeas Corpus as to Offenses against the United States. A State Court or Judge cannot on habeas corpus examine or decide whether a particular offense charged in an indictment, found in a United States Court, is or is not an offense against the laws of the United States.</p> <p>Judicial Notice of Laws of the United States. 'State Courts take judicial cognizance of the laws of the United States without formal proof of them, and are bound thereby.</p>

Marco Millenovich, the deceased, was a saloon keeper, doing business at the “ San Francisco Saloon ” in Virginia City, in partnership with Marco Medin and Luco Zenovich — he being interested to the extent of one-half and they to the extent of one fourth each.

This was an appeal by the executor from the same decree which was the basis of the appeal by the legatees reported in the foregoing case. Executors are not allowed to borrow money or allowed interest. (Lneich v. Medin, 3 Nev. 109; Storer v. Storer, 9 Mass. 37.) The point of interest has been passed on by this Court, and is the law of this case. (Lucich v. Medin, 3 Nev. 109 ; Phelan v. San Francisco, 20 Cal. 39.)

Webster, tbe plaintiff, was the District Attorney of Washoe County, and as such held scrip and evidences of indebtedness against the “ General Eund ” of the county. As such holder, he commenced this suit against the defendant, Eish, who was County Auditor, to enjoin him from drawing the warrants referred to in the opinion.

APPLICATION to tbe Supreme Court for mandamus. The relators, William Hooten, E. W. Clute, and J. R. Withing-ton, were defendants in an ejectment suit brought against them by M. Monahan and John P. Kelley, for certain land in the town of Hamilton, the county seat of the new County of White Pine. It was the records and papers in that suit which they desired to have transferred from Austin, the county seat of Lander County.

The facts necessary to an understanding of the opinion are sufficiently stated therein. I. The statement on appeal does not “specifically point out the particular errors upon which the appellant intends to rely,” and for this reason must be disregarded. (Practice Act, Sec. 332; Barrett v. Tewhslury, 15 Cal. 334; Sutton v. Reed, 25 Cal. 478 ; BurnettY. Pacheco, 27 Cal. 408; Barstow v. Newman, 34 Cal. 90.) II.

This was an action brought by T. Wilcox and J. A. Brown, partners, doing business in the. City of Placerville, California, under the name and style of Wilcox & Brown, against John T. Williams, on the promissory note ’ set out in the opinion. Suit was commenced on May 3d, 1869. Findings and judgment for plaintiffs, and appeal therefrom. I. The cause of action on the note was extinguished by the statute limiting the time of commencing civil actions.

Appeals in two cases from the District Court of the Pirst Judicial District, Storey County. Th'e facts are stated in the opinion of the Court. Purther information in relation to the facts referred to will be found in the report • of the same case, on a former appeal, in 4 Nev. 45. Does the evidence warrant the presumption that the money received by Bethel was received on partnership account ?

The complaint charges, tbe defendant with having unlawfully entered into, and unlawfully continuing and threatening to continue in, the possession of a portion of the Comstock Ledge in the Gold Hill Mining District in Storey County, known as the West or Red Ledge, and with extracting therefrom, removing, and appropriating to his own use, and threatening to continue to extract, remove, and appropriate, thirty tons per day of metalliferous quartz rock and earth, worth eighteen…

The facts are stated in the opinion. The property sought to be subjected to the payment of this debt is a homestead. (4 Cal. 268; 6 Cal. 234; 10 Cal. 296; 3 Nev. 182.) A mortgage of a homestead, less than five thousand dollars in value, signed by the husband alone, is absolutely void. (Stats. 1864-5, 226; 8 Cal. 66; 12 Cal. 327; 33 Cal. 266; 1 Nev. 568 and 607.) A vendor’s lien does not exist where a mortgage security is taken for the purchase money.

This action was brought on two promissory notes executed on June 6th, 1864, at Silver City, for five hundred dollars each, drawing three per cent, per month interest, and payable, one in six months, and the other in eight months. The plaintiff had judgment in the Court below, on June 24th, 1869, for the sum of two thousand seven hundred and eighty-five dollars, certain small offsets having been allowed. , .

The services of plaintiff, for which this suit was brought, were performed between October 20th, 1866, and May 15th, 1867, inclusive. There was judgment for the plaintiff in the Court below, which at the time was presided over by the Judge of the Third Judicial District. I. The Act of the Legislature, conferring on City Recorders the power to examine and commit, in cases beyond their jurisdiction to try, is unconstitutional.

This was an action of ejectment by the Imperial 'Silver Mining Company and the Empire Mill and Mining Company, to recover possession of Lot 10, Block 1, Range O, in the town of Gold Hill, Storey County. The findings and judgment were for plaintiffs. There was a motion by defendant for judgment on the findings, which was denied; and the appeal purports to be from the order as well as from the judgment.

The plaintiff 'sued as a physician and surgeon for four hundred and seventy dollars, for professional services rendered to defendant, in attending on R. Gr. Cheshire and F. H. Pedrick, who had been wounded by a collision on the railroad near the town of Verdi, on September 11th, 1868. He recovered judgment, and the defendant then made a motion for new trial, which was granted.

This was an action for au accounting and reconveyance of real estate. The plaintiff had leased of defendant certain mills known as the “ Petaluma,” “ Daney,” and “ Bowers,” and worked them. Afterwards, in July, 1867, becoming financially embarrassed, he assigned all,his property, real and personal, to defendant, who took possession and proceeded to pay off the claims against plaintiff.

The plaintiff alleged in his complaint that he had loaned defendant three thousand dollars, of which defendant had paid him three hundred dollars; and he demanded judgment for two thousand seven hundred dollars.

The policy of fire insurance, upon which this action was brought, was upon a frame dwelling house on North F Street, Virginia City, for one thousand five hundred dollars, and upon furniture therein for three thousand dollars. Nearly all the property, alleged to have been worth ten thousand dollars; was destroyed by fire on January 3d, 1869; and this suit was instituted April 1st, 1869. The jury returned a verdict in favor of plaintiff for four thousand five hundred dollars.

<p>New Counties — Taxes on Proceeds of Mines. TTnder the Act creating White Pine County, (Stats. 1869, lSt) which took effect on April 1st, 1869, the Assessor and ex officio Tax Collector proceeded in April to assess the proceeds of mines in his county, and collected the tax levied on the same for the quarter ending March 31st, 1869, and preceding the organization of the new county: Held, that the tax for that quarter was properly assessed, levied, and collected in and as of White Pine County.</p> <p>Pirst-quarter Taxes on Proceeds op Mines. Taxes on proceeds of mines for the first quarter of the year cannot be assessed, levied or collected, before the first Monday of April of such year; and they are to be assessed, levied, and collected by the officers of the county in which the mines are then situated, though they may have been during such quarter in another county.</p>

■ Appeal from the District Court of the Sixth Judicial District, Lander County. This was an action for an injunction brought by John Covington, George M. Dyer, A. E. Kerchival, and G. A. McCracken, against John Becker, E. Lamb, and a large number of others, to restrain them from diverting the waters of Reese River at a point about fifteen miles south of Jacobsville.

The defendants in this action were H. E. Rice, S. E. Jones, and A. B. Driesbach, as and composing the Board of County Commissioners, and H. S. Mason, County Treasurer and ex officio Tax Collector of Ormsby County. The Treasurer and County Commissioners took separate appeals from the orders allowing and refusing to dissolve the injunctions against them respectively.

<p>Murder — Threats—Failure to connect Proof Admitted on Condition. In a trial for murder, evidence being offered to prove that a half hour before the killing the defendant had said that “ a d — d puppy had been talking about his' wife, and he was going to put a stop to it,” was admitted against defendant’s objection, on the undertaking of the District Attorney to show by further testimony that the defendant referred to the deceased; but no such further proof being made, nor any ruling excluding the evidence, and the prisoner being convicted of murder in the first degree: Held, that the testimony under the circumstances was improper, was calculated to prejudice defendant, and in the absence of a proper instruction, was good cause for reversal of the judgment.</p>

<p>Certiorari — Province oe the Writ. The province of the writ of certiorari extends only to the question of jurisdictional power.</p> <p>Board oe Equalization oe Special and Limited Jurisdiction. The Board of Equalization is of special and limited jurisdiction, and its record must show affirmatively the necessary jurisdictional facts. , v</p> <p>Equalization' — Beduction oe Assessments. Under the Revenue Act of 1866 (Stats, of 1866, 168, Sec. 16) the Board of Equalization has no power to reduce an assessment when the person complaining has refused to give the assessor a statement under oath of his property.</p> <p>Sworn Statement oe Railroad Companies. Under the Revenue Act of 1869, (Stats. 1869, 184) the sworn statement as to the property of railroads, to be given to assessor for assessment purposes, must show affirmatively that the person making it is one of the persons named in the statute, and be subscribed by him.</p> <p>Eailurh to make Sworn Statement. The punishment prescribed for failure of a railroad company to make a sworn statement, as required by the Revenue Act of 1869, (Stats. 1869, 184, Sec. 3) is in addition to the penalty of exclusion from the benefits of equalization.</p> <p>Demand eor Sworn Statement — Burden oe Prooe. Where a revenue Act provided that a sworn statement of the property of a railroad should be furnished on demand of the assessor, otherwise it should be deprived of the benefits of equalization; and, no proper statement being made, it was claimed by the railroad company that it did not appear that there had been any demand: Held, that the burden of proof was upon the railroad company desiring equalization to show the fact of neglect to make the demand.</p>

'Appeal from the District Court of the Sixth Judicial District, Lander County. I. To authorize the issuance of mandamus, it must appear that defendant yet has it in his power to perform the duty required of him. (12 Barb. 217; 15 Barb. 607; 24 Barb. 166.; 11 How. Pr. 89 ; 7 Abb. Pr. 34.) II. The writ will not issue where it would be unavailing from want of power in the defendant to comply. (12 Barb. 217 ; 15 Barb. 607 ; 24 Barb. 166 ; 11 How. Pr. 89 ; 18 How. Pr. 305 ; 4 Abb.

This was an original proceeding in the Supreme Court in the nature of quo warranto to inquire into the right of the defendant to hold the office of District'Judge of the Eighth Judicial District. It appeared that on May 27th, 1869, Judge Chase was taken before Judge Wright of the Second Judicial District, declared to be insane, and in accordance with the statute ordered to be conveyed to the Insane Asylum at Stockton, in California.

The defendant was indicted, at the November Term, 1869, of the Court below,'for the crime of assault with a deadly weapon, with intent to inflict upon the person of William D. Knox a bodily injury without any considerable provocation.

This was an original application in the Supreme Court for the writ of mandamus, to compel the Board of County Commissioners ' of Ormsby County to hear and determine the application .of the' Virginia and Truckee Railroad Company for equalization of assessments, made under the Supplementary Revenue Act of 1867.

<p>Appeal from the District Court of the First Judicial District, Storey County.</p> <p>The complaint in this ease contained two counts: the first, for a sum of three thousand, eight hundred and seventy-:seven dollars and twenty-seven cents, for so much money paid, laid out, and expended for the use of defendant in the purchase and sale of various stocks at his special instance and request, which said sum he undertook and promised to pay; the second, for a like sum for work and labor done and performed in the purchase, and sale of various stocks at defendant’s instance and request, which said sum, in consideration thereof, he undertook and promised to pay.</p> <p>The judgment was for the amount claimed. Among the defendant’s instructions, ^ which were refused, and which are commented on in the opinion, were the following:</p> <p>1st. A broker who is employed to purchase stocks, and is authorized by usage or by an express agreement to make the purchase in his own name, without disclosing the name of his principal, has no right to maintain an action against his principal for not furnishing him with money to pay for the stocks, without showing that he had' demanded payment of the price, and had transferred or offered to such principal the stock he had purchased.</p> <p>2d. If the jury believe from the evidence that plaintiffs have not actually paid out the money sued for, but that Sherwood and Freeborn paid the same for the defendant, you should find for the defendant.</p> <p>3d. The money sued for must be proven to-have been actually paid by plaintiffs; and- if the jury believe from the evidence that plaintiffs have not paid the same, they should find for defendant.</p> <p>4th. Under the second count in the complaint, plaintiffs must prove that they rendered services for defendant at his special instance and-request, and they must also prove what such services were reasonably worth; and if there is not any proof as to what such services were reasonably worth, you should find for .defendant.</p> <p>I.. The following authorities support the proposition' that the evidence from the books, and the books, were insufficient. (Kent, v. Granin, 1 Gray, 148 ; 1 Greenl. on Ev., See. 115, and-note 3 and authorities; Greenl. on Ev., Sec. 117 and note.)</p> <p>II. The refusing of defendant’s instructions was error. (Mer-win v. Hamilton, 6 Duer, 244, and authorities there cited.)</p> <p>III. The giving of plaintiff’s instructions was error. (1 Gray, 148 ; 8 Walls, 544; 5 Walls, 432 ; 9 S. & R. 285 ; 12 Pick. 139; 3 Cush. 342; 23 Cal. 264.)</p> <p>I. The Court cannot review the evidence with a view to ascertain its sufficiency to support the verdict, for the reason that it does not appear that all the evidence is in the record. (Howard v. Winters, 3 Nev. 539.)</p> <p>II. If the evidence should be reviewed it will be found to fully sustain the verdict. The books were admitted without objection, and the entries show the entire transactions between the parties, money paid for the purchase, money received from sales,.amount paid for assessment, and balance as found by the verdict.</p> <p>III. The testimony shows that the purchases were made in pursuance of express instructions, and that the express sales were made in pursuance of instructions, either general or special.’ It further shows, which obviates the necessity of any other proof, that after all the transactions were concluded, an account was tendered to the defendant and he failed to dissent from anything done.</p> <p>I. The only certificate in any case now required by statute is that of the Judge “ that the same has been allowed by him, and is correct.” (Practice Act, Sec. 197.) The statute having thus specified the certificate to be attached, or to accompany the statement, the presumption is that all the evidence bearing upon or relating to the “ particular specification ” is contained in the statement, when such certificate accompanies it.</p> <p>II. The books were not offered or admitted in evidence. On the contrary, counsel for defendant was replete with objections as to their admissibility when offered. Not having been offered, no objections were, of course, interposed.</p> <p>The transcript contains the following note: “ The counsel for plaintiffs, as the witness W. W. Price was being examined touching the various items of account, stated to the Court that as the said witness should testify to each item of said account from the journal, that the items so testified to would be considered as offered and introduced in evidence; to which the Court assented and so ordered.” It appears fropi the’aboye that the books were not offered in evidence, but that each item of the account testified to by the witness Price would be considered as offered and introduced in evidence.</p>

The facts are stated in the opinion. I. It may bé said that the proviso of section twenty of the Railroad Statute of 1865, “ that no one depot, watering-place, machine or work-shop, or other buildings for the convenient use of said roads, shall cover over two square acres each,” applies only to the land of the State, and not to that of private individuals.

<p>Right to Yote — Registry-Law Oath Unconstitutional. The registry law (Stats. 1S64-5, 382) provided that no person should be entitled to have his name registered — and consequently to vote — until he had taken an oath that he had not, after arriving at eighteen years of age, been voluntarily engaged in rebellion against the government; while the Constitution (Art. II, Sec. 1) provides that no such person should be allowed to vote unless an amnesty be granted: Held, on an application for registry by one who could not take the prescribed oath, but was entitled under the Constitution to the right of suffrage, that the oath required by the registry law was unconstitutional, and that as the registry agents could not alter or modify it so as to leave out the objectionable part, the entire oath must fall.</p> <p>Construction of Statutes — Unconstitutionality. . The form of a law by which a person is deprived of a constitutional right is immaterial; it is a nullity, whatever be its form.</p> <p>Statutes taking away Constitutional' Rights in Effect. A statute which makes the enjoyment of a constitutional right depend upon an impossible condition or upon the doing of that which cannot legally be done, is equivalent to an absolute denial of the right under any condition: the effect, and not the language of the statute in such case, must determine its constitutionality.</p> <p>Power of President of United States to proclaim Amnesty. The Constitutional power of the President of the United States to pardon includes the right to proclaim an amnesty.</p> <p>Amnesty, What. Amnesty is a general pardon granted to a class of persons . by law or proclamation ; and the act of amnesty in such case is as properly a pardon as if simply granted to an individual by deed.</p> <p>Registry of Persons Entitled to Vote — Mandamus. The Registry Agent appointed under the registry law (Stats. 1864 — 5, 382) may be compelled by mandamus to register the names of all persons applying and entitled under the Constitution to vote.</p>

The complaint sets forth that on July 24th, 1868, the plaintiffs, J. Brown and J. Hamilton, were the owners and in the possession of three hundred and fifty cords of wood, worth one thousand two hundred dollars, on a wood ranch in Washoe County; that on that day one J. S. Peck commenced an action against them, and procured an injunction to be issued out of the Third District Court, restraining them from removing the wood, to which writ they yielded due obedience; that in…

<p>Appeal from the District Court of the Sixth Judicial District, Washoe County.</p>

The facts are stated in the opinion. I. The right to take judgment upon failure to answer is indisputable. (Practice Act, Sec. 152.) Judgment taken, relief can be granted only in the cases prescribed by statute, to wit: mistake, inadvertence, surprise, or excusable neglect, (Practice Act, Sec. 68) and then only upon affidavit “ showing good cause therefor.” The affidavit must show good' or legal excuse.

The complaint in this action, which was against A. Haas, B. Wolfe, and L. Godchaux, composing the firm of A. Haas & Co., set out the purchase by defendants, in November, 1868, of a small lot of land, sixteen feet front on the west side of Main Street by seventy-five feet in depth, in Treasure City, White Pine County, for the sum of five hundred dollars; that it had been previously agreed that plaintiff was to furnish half the consideration money, which he did furnish, and…

This was an original proceeding by petition for tbe writ of mandamus in tbe Supreme Court. It was commenced on February 17 th, 1870.

This cause was decided at the April Term, 1868, but not ready for publication in 4th Nevada Reports. As will be seen there was a difference of opinion in the bench, the views of Lewis, J. in respect to one branch of the case being concurred in by the then Chief Justice Beatty, and in respect to the other branch of the case, by Johnson, J. The whole amount of the tax for which suit was brought, was five. hundred and eighty-five dollars and nine cents.