State ex rel. Pacific Reclamation Co. v. Ducker
35 Nev. 214
Nev.
1912
Check Treatment

By the Court,

NORCROSS, J.:

This is an original proceeding in mandamus to require the respondent to fix the amount of an undertaking to stay the execution, operation, and effect of an order *218granting an injunction pendente lite in an action which involves the right to certain of the waters of Humboldt River, instituted by the Union Canal Ditch Company and others against the above-named relators, pending an appeal from such order. The motion of the defendants below, relators herein, for an order fixing the amount of a stay bond pending the appeal was denied “upon the grounds that a proper case does not appear requiring the fixing of a stay bond, and that no appeal lies from the order of the court granting a temporary injunction.”

Two questions are presented in this proceeding:

(1) Does an appeal lie from an order granting an injunction?

(2) Was the refusing of a stay bond pending an appeal from the order a matter within the discretion of the trial j udge ?

[1] Section 387 of the practice act, which went into effect January 1, 1912 (Rev. Laws, 5329), provides: “An appeal may be taken: (1) * * * (2) From an order granting or refusing a new trial, or refusing to grant or dissolve an injunction, or appointing or refusing to appoint a receiver, or dissolving or refusing to dissolve an attachment, or changing or refusing to change the place of trial, and from any special order made after final judgment, within sixty days after the order is made and entered in the minutes of the court. (3) * * *”

Section 330 of the former practice act adopted in 1869 (Stats. 1869, p. 248), provided that: “An appeal may be taken: * * * From an order granting or refusing a new trial, from an order granting or dissolving an injunction, and from an .order refusing to grant or dissolve an injunction. * * *”

Section 6 of “An act concerning courts of justice of this state, and judicial officers,” approved January 26, 1865 (Rev. Laws, 4833), provides: “The supreme court shall have jurisdiction to review upon appeal: First, a judgment in an action or proceeding, commenced in a district court, when the matter in dispute is embraced *219in the general jurisdiction of the supreme court, and to review upon appeal from such judgment any intermediate order or decision involving the merits and necessarily affecting the j udgment; second, an order granting or refusing a new trial in such cases; an order granting or refusing to change the place of trial of an action or proceeding after motion is made therefor in the cases in which that court has appellate jurisdiction, and from an order granting or refusing to grant an injunction or mandamus in the cases provided for by law.”

It is the contention of counsel for respondent that, as no provision is contained in section 387, supra, of the present practice act authorizing an appeal from an order granting an injunction, no appeal lies therefrom. It is the contention of counsel for relators that the right of appeal exists under the provisions of section 4833, Rev. Laws, supra. The original practice act, adopted by the territorial legislature in 1861, provided for an appeal from an order “refusing to change the place of trial.” (Stats. 1861, pp. 361, 363, secs. 274, 285.) The statute of 1865, relative to courts of j ustice and j udicial officers, referred to, supra, was adopted at the first legislative session following the organization of the state government. This act was designed largely to meet the situation occasioned by the changes made in the courts by the constitution. The practice act of 1861 remained in force after the state organization and until specifically repealed by the practice act of 1869, which in turn was specifically repealed by the practice act of 1912. The practice act of 1869 (section 330) did not contain a provision for an appeal from an order changing or refusing to change the place of trial. Both the practice acts of 1861 and 1869 contained provisions for an appeal “from an order granting or dissolving an injunction, and from an order refusing to grant or dissolve an injunction.”

With these preliminary observations we come to a consideration, of the decisions of this court in the cases of Peters v. Jones, 26 Nev. 259, and State v. Shaw, 21 Nev. 222. The Shaw case came up on appeal from a *220final judgment, and the question there presented was whether an order changing the place of trial was reviewable otherwise than on direct appeal. The court said: “The respondent objects to the consideration of the order changing the place of trial from Nye County to Eureka County upon the ground that such an order can only be reviewed upon a direct appeal therefrom. Under our present practice act, however, such an order is not appealable. (Gen. Stats. 3352.) It is properly brought before the court upon an appeal from the judgment, under section 3360, as an intermediate order involving the merits and necessarily affecting the judgment. When Table Mountain G. & S. M. Co. v. Waller’s Defeat S. M. Co., 4 Nev. 218, 97 Am. Dec. 526, was decided, the statute made such orders appealable. The objection is therefore untenable.”

Neither in the opinion nor in the briefs of counsel is to be found any reference to section 6 of the act of 1865, quoted supra.

In the Peters case the court said: “This is an appeal from an order changing the place of trial of this action. Under our former practice act, as amended in 1865 (Stats. 1865, p. 111), an order granting or refusing to change the place of trial of an action or proceeding was appealable to this court. (Section 2513, Comp. Laws; Table Mountain G. & S. M. Co. v. Waller’s Defeat S. M. Co., 4 Nev. 218, 97 Am. Dec. 526.) When the present practice act was adopted in 1869, it was provided in the first section of title 9, upon the subject of appeals in civil actions, that ‘a judgment or order in a civil action, except when expressly made final by this act, may be reviewed as prescribed by this title and not otherwise.’ (Section 3422, Comp. Laws.) Section 3425 enumerates the judgments and orders from which an appeal may be taken. They are: * * * The above provisions omit the provision contained in the prior law that an appeal may be taken from an order granting or refusing to change the place of trial. Such orders, therefore, are *221not appealable by the terms of the statute. This was the ruling in the case of State v. Shaw, 21 Nev. 222. A contrary ruling was made in the case of Elam v. Griffin, 19 Nev. 442. In that case the attention of the court was not directed to the change that had been made in the statute.”

If the court in the latter case did not fall into error in assuming that section 6 of the act of 1865, concerning courts and judicial officers, was an amendment of the practice act of 1861, then the conclusions reached in that case might be controlling under the facts presented in this case. We are,, however, unable to find any reason or authority for assuming that the said section 6 was an amendment of the then existing practice act. The constitution (Rev. Laws, 275)- points out how a section of a statute may be amended, and it will not be contended that such method was followed. Fitzgerald, J., pointed out in his dissenting opinion that section 6 of the act of 1865 was not an amendment of the practice act, and no answer to his contention is to be found in the prevailing opinions which simply assumed that the act of 1861 was amended by the act of 1865.

The act of 1865, concerning courts and judicial officers, was a comprehensive act containing sixty-five sections specially devoted to the subject of the power and jurisdiction of the various courts and the duties and functions of judicial officers. It was an act in pari materia with the civil and criminal practice acts, the act in relation to estates of deceased persons, and other acts having to do with the powers and procedure of courts. All its provisions were and are subject to the well-settled rules for the construction of acts in pari materia. The act of 1865 has never been specifically repealed in whole or in part. If any of its provisions are not now in force, it is because they have been repealed by implication.

[2] That repeals by implication are not favored is a rule of construction that this court has had repeated occasion to apply. (Thorpe v. Schooling, 7 Nev. 17; Estate *222of Walley, 11 Nev. 260; State v. Donnelly, 20 Nev. 214; State v. LaGrave, 23 Nev. 373.)

In State v. LaGrave, supra, this court said: "The rule that courts are bound to uphold the prior law if it and a subsequent one may subsist together, or if it be possible to reconcile the two together, is well settled. (McCool v. Smith, 1 Black, 470, 17 L. Ed. 218; Endlich on the Interpretation of Statutes, sec. 210; see the numerous authorities cited by note 1.) Unless the latter statute is manifestly inconsistent with and repugnant to the former, both remain in force. (Industrial School Dist. v. Whitehead, 13 N. J. Eq. 290, and cases cited.) A general statute without negative words will not repeal the particular provisions of a former one unless the two acts are irreconcilably inconsistent. (State, ex rel. Dunkel, v. Beard, 21 Nev. 218.) The repeal, total or partial, of statutes by implication is not favored. As to this rule there can be no difference of opinion, and further authorities need not be cited.”

In Thorpe v. Schooling, supra, it was said: "True repeals by implication are not favored; and if it not be perfectly manifest, either by irreconcilable repugnancy or by some other means equally indicating the legislative intention to abrogate a former law, both must be maintained. The intention, if perfectly clear, however, must control, however it may be expressed or manifested. It is upon this principle, evidently, that it is held that a statute revising the whole subject-matter of a former law repeals it.” Between section 6 of the judiciary act of 1865 and section 387 of the practice act of 1912, in so far as appeals from orders affecting injunctions are concerned, there is no repugnancy. The section first mentioned provides: "The supreme court shall have jurisdiction to review upon appeal: * * * An order granting or refusing to grant an injunction or mandamus in the case provided for by law.” The last-mentioned section provides: "An appeal may be taken: * * * From an order * * * refusing to grant or dissolve an injunction * * * within sixty days after the order is made *223and entered in the minutes of the court.” Each section refers to a separate and distinct class of orders affecting injunctions, and each section covers what the other omits. Together they give a right of appeal in all those cases which the law of this staté has given continuously since the organization of the territorial government more than a half century ago. There being no repugnancy between the two sections, a repeal by implication cannot be said to have been effected for that reason.

[3] Nor can it be said that the legislature, in section 387 of the practice act, intended to cover the whole subject-matter of the cases in which an appeal would lie to the supreme court. The act in relation to estates of deceased persons and other acts contain provisions for appeals from certain orders that have never been attempted to be covered by provisions in the practice act. (Rev. Laws, 4564, 6089, 6112, 6133.)

If section 387 of the practice act had omitted entirely all specific reference to appeals from orders affecting injunctions, a situation would be presented upon the facts similar to that presented in- the Peters v. Jones case, and it might with greater reason be said that the total omission of the subject-matter was indicative of a legislative intent to take away a theretofore existing right. We do not wish to be understood as holding that this circumstance alone would be sufficient to accomplish a repeal by implication of another existing statute covering the subject-matter omitted. Other independent considerations might be potent in determining the legislative intent.

[4] When the legislative intent can be ascertained, that must govern, and all rules of construction are but mere aids in the ascertainment of such intent. An examina-' tion of the provisions of subdivision 2 of section 387 discloses that in every ease where there is an appeal allowed from a specific character of order, with the single exception of orders affecting injunctions, the appeal is given both from the affirmative and negative action of the trial *224court, to wit, granting or refusing a new trial; appointing or refusing to appoint a receiver; dissolving or refusing to dissolve an attachment; changing or refusing to change place of trial. Thus we think the section shows on its face evidence of the omission, through accident or inadvertence, of provisions which appeared in corresponding sections of former practice acts. The section heading to section 387 was incorporated in the act as adopted. It reads: " Time within which an appeal may be taken. ” In arriving at the intention of the legislature in doubtful matters, reference may be had to titles of chapters and headings of sections. There is nothing in this heading to suggest that the section was intended to cover all matters in which an appeal would lie. If we may not indulge a consideration that there may have been an omission of an important provision through accident or inadvertence in the adoption of a statute containing nearly nine hundred sections, nevertheless we find nothing in the statute itself that would warrant this court in finding a manifest intent to repeal by implication the positive provisions of an existing statute. Holding that the provisions in question of section 6 of the act of 1865 are not repealed by an omission of the same provisions from section 387 of the act of 1912 is a very different proposition from construing into the latter section the omitted words.

In Chicago Railway Co. v. United States, 127 U. S. 409, 8 Sup. Ct. 1196, 32 L. Ed. 180, Mr. Justice Fields says: " When there are two acts or provisions of law relating to the same subject, effect is to be given to both, if that be practicable. If the two are repugnant, the latter will operate as a repeal of the former to the extent of the repugnancy. But the second act will not operate as such repeal merely because it may repeat some of the provisions of the first one and omit others, or add new provisions. In such cases the later act will operate as a repeal only where it plainly appears that it was intended as a substitute for the first act. As Mr. Justice Story says, it 'may be merely affirmative, or cumulative, or *225auxiliary.’ (Wood v. United States, 16 Pet. 342-363, 10 L. Ed. 987.)”

In Rosencrans v. United States, 165 U. S. 257, 262, 17 Sup. Ct. 302, 304, 41 L. Ed. 708, the court, by Mr. Justice Brewer, said: "When there are statutes clearly defining the jurisdiction of the courts, the force and effect of such provisions should not be disturbed by a mere implication flowing from subsequent legislation. In other words, where Congress has expressly legislated in respect to a given matter, that express legislation must control, in the absence of subsequent legislation equally express, and is not overthrown by any more inferences or implications to be found in such subsequent legislation. Especially is this rule to control when it appears that Congress in some cases has made express provisions for effecting a change. This does not conflict with the doctrine stated in Re Bonner, 151 U. S. 242, 256, 14 Sup. Ct. 323, 325, 38 L. Ed. 149, that the jurisdiction of a court in criminal cases cannot 'be enlarged by any mere inferences from the law or doubtful construction of its terms.’ It is rather the converse of that, for the effort is to destroy a jurisdiction otherwise clearly existing, by mere inferences and doubtful construction.”

See, also, Carpenter v. Russell, 13 Okl. 277, 73 Pac. 930. When the Table Mountain case, 4 Nev. 218, 97 Am. Dec. 526, cited in the Peters case, was decided, both the practice act of 1861 and the judiciary act of 1865 provided for appeals from orders refusing to change the place of trial. Hence that case could throw no light on the question under consideration.

We think the words,"in the case provided for by law,” concluding section 6 of the act of 1865, refer to those provisions of the practice act relative to the granting or dissolving of injunctions, and not to the section of the practice act enumerating certain judgments or orders as appealable, as contended by counsel for respondent. Counsel have referred to a number of cases decided by this court containing expressions to the effect that the *226right of appeal was to be determined by reference to the section of the practice act enumerating instances in which an appeal would lie. Such expressions do not amount to a holding that no other provisions of statutes exist authorizing appeals, for no such question was before the court in those cases calling for such a decision.

The act of 1865, "An act concerning the courts of justice of this state, and judicial officers” (Rev. Laws, 4828-4885), was adopted, with some modifications, from a statute having the identical title, enacted by the legislature of California and approved April 20, 1863. (Stats. Cal. 1863, p. 333.) Section 6 of our act of 1865 corresponds to the same numbered section in the act of 1863 of the California statute. The California statute of 1863 does not appear to have ever been specifically repealed, but, when the code of civil procedure was adopted by that state in 1872, the general subject-matter of the judiciary act of 1863 appears to have been incorporated in the code of civil procedure. Section 6 of the judiciary act was omitted from the revision, but section 5, with some modifications, was included and appears as section 52 of the code of procedure act. A number of decisions of the Supreme Court of California refer to section 52 as conferring jurisdiction on that court in matters of appeal. (Morton v. Broderick, 118 Cal. 474, 50 Pac. 644; People v. Bank, 152 Cal. 261, 92 Pac. 481.) This court in Goldfield M. M. Co. v. Frances-Mohawk M. & L. Co., 33 Nev. 491, 504, recognized section 6 of the act of 1865 as an existing provision of law. We think there are sufficient weighty and conclusive reasons for holding that the provisions of section 6 of the act of 1865, allowing a right of appeal from an order granting an injunction, have not been repealed, and that such right exists.

[5] Defendants, relators herein, having the right of an appeal from an order granting an injunction pendente lite, was it the duty of the court, upon application, to fix a bond staying execution of the injunction pending appeal? It appears that the Pacific Reclamation Company had constructed on the head waters of the *227Humboldt River and certain of its tributaries a large reservoir for the storing of waters of said river and its tributaries, and it is alleged that the cost of this reservoir was about $140,000; that at the time of the issuance of the injunction several thousand acre-feet of water were stored in this reservoir. In addition to prohibiting the defendants from storing, impounding, diverting, or using these waters, the injunction commanded that the “Pacific Reclamation Company, its agents, servants, and employees are commanded and ordered to remove from said Humboldt River, and from said Bishop Creek, and from said Burnt Creek, and from said Trout Creek, or either of them, the obstruction or obstructions therein placed by said defendant, Pacific Reclamation Company, so as to permit the waters thereof hereintofore impounded or stored in said storage reservoir as in the complaint alleged, to flow out, into and down the channel of said Bishop, Burnt, and Trout Creeks, or either of them, and said Humboldt River, as and in the manner said water or waters of said streams were wont or accustomed to flow, prior to the placing or erection of obstructions therein, in the complaint herein referred to, by the defendants or either of them, pending the final hearing of the above-entitled action, and until the further order of this court.”

This is a mandatory injunction as distinguished 'from a mere prohibitive injunction. It requires the delivery of water in the possession and under the control of defendants to plaintiffs. On an appeal from a mandatory injunction requiring defendants to deliver property to plaintiffs, as in this case, an appeal from the order entitles the defendants, as a matter of right, upon the filing of a proper stay bond, to a stay of proceedings under the injunction. In such a case, the fixing of the amount of a stay bond is not a matter of discretion with the trial court. (Mining Co. v. Fremont, 7 Cal. 130; Bliss v. Superior Court, 62 Cal. 543; Dewey v. Court, 81 Cal. 64, 22 Pac. 333; Schwartz v. Court, 111 Cal. 106, 43 Pac. 580; Foster v. Court, 115 Cal. 279, 47 Pac. 58; *228Nark v. Court, 129 Cal. 1, 61 Pac. 436; Elliot v. Whitmore, 10 Utah, 238, 37 Pac. 459; Rev. Laws, 5351.)

The identical question, under a similar state of facts as here presented, was considered by the Utah court in Elliot v. Whitmore, supra, and it was there held to be the duty of the court below to fix the amount of a supersedeas bond pending appeal. See, also, State v. Superior Court, 39 Wash. 115, 80 Pac. 1108, 1 L. R. A. (N. S.) 554, 109 Am. St. Rep. 862, and note to latter case as reported in 4 Ann. Cas. 232; State v. Superior Court, 28 Wash. 403, 68 Pac. 865; State v. Superior Court, 43 Wash. 225, 86 Pac. 632; Home Fire Insurance Co. v. Dutcher, 48 Neb. 755, 67 N. W. 767.

Petitioners are entitled to the peremptory writ in this case, but as the trial court assumed, because of former decisions of this court, that no appeal would lie from an order granting an injunction, we think the issuance of the writ should be stayed until such time as another application can be made to the court to fix the amount of a stay bond and until the further order of this court.

It is so ordered.