33 Nev. 527 | Nev. | 1910
By the Court,
This is an appeal from a judgment made and entered on the 27th day of August, 1910, in the Seventh Judicial District Court of the State- of Nevada, in and for the county of Esmeralda, ordering the issuance of a peremptory writ of mandamus, commanding the said appellant herein, Theron Stevens, as trustee of the townsite of Goldfield to issue to the said Edward C. Jennett, respondent herein, a deed to certain lots in the townsite of Goldfield, upon the payment therefor of the sum of $4.50, under and by virtue of the provision of section 7 of an act entitled "An act prescribing the rules and regulations for the execution of the trust arising under the act of Congress entitled 'An act for the relief of the inhabitants .of cities and towns upon the public lands,’ approved March 2, 1867.” (Comp. Laws, 345.)
The mandamus proceedings in the lower court were
The said Seventh Judicial District Court has two judges (Stats. 1909, p. 187); the said Peter J. Somers being one, and the said Theron Stevens, appellant herein, being the other. By virtue qf his office as such district judge, the said Theron Stevens became the trustee of the said town-site of Goldfield, under the provisions of U. S. Rev. St., sec. 2387, U. S. Comp. St. 1901, p. 1457. (Lechler v. Chapin, 12 Nev. 65.)
It is contended by the appellant that the judgment and order directing the peremptory writ of mandamus is void, for the reason that the court was without jurisdiction to enter the judgment and order in the premises. In this contention we concur.
The trust created by the act of Congress was an official one and was, in no sense, personal to the appellant Theron Stevens. He was trustee of the townsite of Goldfield by virtue of his office as district judge of the Seventh Judicial District. (Lechler v. Chapin, supra; Smith v. Hill, 89 Cal. 122, 26 Pac. 644; Whittlesey v. Hoppenyan, 72 Wis. 140, 39 N. W. 355; Smith v. Pipe, 3 Colo. 187; Georgetown v. Glaze, 3 Colo. 230; Aspen v. Rucker, 10 Colo. 184, 15 Pac. 791; 6 Fed. St. Ann., p. 344.)
As the appellant was trustee of the townsite of Goldfield by virtue of his office as district judge, his associate, Judge Somers, was without power to compel him by mandamus to exercise the duties imposed upon him as such trustee in any particular way. (Comp. Laws, 3542; Shreve v. Pendleton, 129 Ga. 374, 58 S. E. 880; Elliott v. Hipp, 68 S. E. 736; State v. Circuit Judge, 9 Ala. 343; 23 Cyc. 541.)
The appellant as trustee of the townsite of Goldfield, by virtue of his office as district judge, is not an inferior officer who may be compelled to perform a duty enjoined upon him by law by proceedings in mandamus instituted in a district court.
The Supreme Court of Georgia, in the recent case of Shreve v. Pendleton, Judge, supra, said: "We think an
In Elliott v. Hipp, supr.a, the same court said: "The provisions in reference to the appointment of county registrars are contained in Pol. Code, pars. 50, 51. Section 50 requires that the judge of the superior court of each county shall biennially appoint three upright and intelligent citizens of the county as county registrars, and that he shall have the power, with or without cause, to remove
The question sought to be determined by the mandamus proceedings in the lower court was the amount which the trustee had a right to charge the lot claimant under the provisions of Comp. Laws, 345, supra. The appellant, trustee, determined that, under the provisions of said section, the respondent was required to pay for his lot the sum of $9.50 and refused to issue a deed upon being tendered the sum of $4.50. The lot claimant upon proceedings in mandamus before the district court, the trustee’s colleague on the district bench, presiding, obtained a decision holding that the sum of $4.50 was the maximum charge which the trustee could make in the premises, and ordered that a writ of mandamus issue accordingly. To permit the writ to issue in this case is to compel one district judge, in the exercise of a judicial duty, to be governed by the views of another district judge as to the construction of a statute, contrary to his own opinion of what that construction should be, a situation contrary to the principle of the. law of mandamus, which presupposes a superior authority to command the doing of a particular act enjoined by law.
The lower court being without jurisdiction, its judgment is void.
Judgment reversed and cause remanded, with directions to dismiss the proceedings.