33 Nev. 540 | Nev. | 1910
Lead Opinion
By the Court,
(after stating the facts as above):
This proceeding is based upon a petition for a writ of mandate, asking that the lieutenant-governor, who, under a provision in the constitution, has been the acting governor since the death of Governor Sparks, be required to accept, on behalf of the state, 145 bonds of the State of North Carolina, which, with their unpaid interest coupons, are of the par value of $401,170, under an act of our legislature approved February 26,' 1901, entitled “An act to require the acceptance and collection of grants, devises, bequests, donations and assignments to the State of Nevada,” which reads as follows:
“Section 1. That whenever any grant, devise, bequest, donation or gift or assignment of money, bonds or choses in action or of any property, real or personal, shall be made to this state, the governor is hereby directed to receive and accept the same, so that the right and title to the same shall pass to the state; and all such bonds, notes or choses in action or the proceeds thereof when collected, and all other property or thing of value, so received by the state as aforesaid, shall be reported by the governor to the legislature, to the end that the same may be covered into the public treasury, or appropriated to the state university or to the public schools, or to state charities as may hereafter be directed by law.
“Sec. 2. That whenever it shall be necessary to protect or assert the right or title of the state to any property so received or derived as aforesaid,*or to collect or reduce into possession any bond, note, bill or chose in action, the attorney-general is directed to take the necessary and proper proceedings, and to bring suit in the name of the state in any court of competent jurisdiction, state or federal, and to prosecute all such suits, and is authorized to employ counsel to be associated with him in such suits and actions who, with him, shall fully rep*554 resent the state and shall be entitled to reasonable compensation out of the recoveries or collections in such suits and actions.” (Stats. 1901, c. 19.)
As reasons for respondent’s refusal to accept the bonds, and against the issuance of a writ requiring their acceptance, numerous objections are made, as detailed in the foregoing statement of facts and issues. Among the more important of these, and illustrative of others, are the ones that the bonds were issued as the result of a conspiracy to defraud the State of North Carolina; that they were declared invalid by an act of the legislature and by a constitutional amendment in that state; that the bonds of the par value of $11,262,000, in addition to the ones of the par value of $401,170, are owned by individuals who are without remedy for the enforcement of their payment, because under the eleventh amendment to the federal constitution the persons holding them cannot maintain a suit against the State of North Carolina; that the bonds are barred by the statute of limitations of that state; that by reason of the declaration of invalidity expressed by the legislature in the constitutional amendment, the holders of the bonds are without remedy to enforce their collection, and that they are therefore without any real value, and that the acceptance of them would impose upon the state expensive litigation for their enforcement and would tend to disturb the friendly relations existing between the people of North Carolina and this state. The most of these obj ections and others raised, such as those which relate to the validity of the bonds, are grave judicial questions which might be determined in an action between the State of Nevada and the State nf North. Carolina, in which the latter would be entitled to appear and defend. These, and other serious questions, judicial in their nature, are for the courts, and not properly for the executive to determine. Whether North Carolina, acting as her own judge, and denying the holders of the bonds the right to enforce them, even in her own courts, can make such a constitutional and legislative repudiation of them, in
No proof was submitted on behalf of respondent to support the allegation in his answer that the bonds are of no value. The statement of counsel for petitioner that the bonds were of the market value of 25 per cent of the face value, which is not directly denied, does not indicate that they may not be of greater value, or par value, when owned by the state, which, differently from individuals, can maintain an action to recover upon them. The value of the bonds to the state would be dependent largely upon the result of a suit. If litigants had to allege and prove the value of bonds and negotiable instruments in advance of maintaining a suit upon them, the burdens of litigation, already too great, might be doubled or greatly increased. The determination of whether the state shall accept the bonds may be safely left where it belongs and to the people’s representatives in the senate and assembly; and, if the state does not accept them, the question of whether the State of North Carolina is legally liable to pay them is one which may be properly submitted to the Supreme Court of the United States, where it belongs. The prevention of the determination of these matters by the legislature and by the Supreme Court of the United States is not within the executive powers which the lieutenant and acting governor is authorized to exercise, nor is it the duty of this court to deprive the legislature of its right to determine whether the bonds shall be accepted, nor to prevent the questions relating to their validity, the decision of which pertains to judicial powers, from being submitted to the Supreme Court of the United States if the legislature desires that they be accepted. No reason is apparent
In consonance with the general principle established by numerous decisions, it was held in Kneeland v. Lawrence Bros. & Co., 140 U. S. 209, 11 Sup. Ct. 786, 35 L. Ed. 492, that coupon bonds payable to bearer passed by delivery, and a bona fide purchaser of them before maturity takes them free from any equities that might have been set up by the original holders, and that the burden of proof is on the one who assails the bona fides of such purchase. It would be incumbent upon the defendant in a suit upon the bonds to plead and show that the action was barred by the statute of limitations, or this objection might be waived.
In Wilcox v. Williams, 5 Nev. 213, it was said: “No party is compelled to plead the statute of limitations; no court can infer from lapse of time apparent on the face of pleadings, that the statute has run.”
In Moore v. Smith, 29 S. C. 254, 7 S. E. 485, the court
In consonance with numerous decisions in other jurisdictions, the Supreme Court of North Carolina has often held that the statute of limitations is an affirmative defense, and must be pleaded and established by the party who relies upon it. (Hooker v. Worthington, 134 N. C. 283, 46 S. E. 726; Bond v. Wilson, 129 N. C. 387, 40 S. E. 182; Gupton v. Hawkins, 126 N. C. 81, 35 S. E. 229; Parker v. Harden, 121 N. C. 57, 28 S. E. 20; Wood v. Barber, 90 N. C. 76; Hobbs v. Barefoot, 104 N. C. 224, 10 S. E. 170; Nunnery v. Averitt, 111 N. C. 394, 16 S. E. 683; Moore v. Garner, 101 N. C. 374, 7 S. E. 732; Graham v. O’Bryan, 120 N. C. 463, 27 S. E. 122; White v. Century Gold M. Co., 28 Utah, 331, 78 Pac. 868; Borland v. Haven (C. C.) 37 Fed 394; Pierce v. S. P. R. R. Co., 120 Cal. 156, 47 Pac. 874, 52 Pac. 302, 40 L. R. A. 350; Cann v. Cann, 40 W. Va. 138, 20 S. E. 910; Vail v. Halton, 14 Ind. 344; Lewis v. Mason, 84 Va. 731, 10 S. E. 529; Green v. Dodge, 79 Vt. 73, 64 Atl. 499; Hunter v. Hunter, 63 S. C. 78, 41 S. E. 33, 90 Am. St. Rep. 663; Barnet v. Houston, 18 Tex. Civ. App. 134, 44 S. W. 689; McDowell v. Potter, 8 Pa. 189, 49 Am. Dec 503; Kilbourne v. Sullivan Co., 137 N. Y. 170, 33 N. E. 159; Moffet v. Farwell, 222 Ill. 543, 78 N. E. 925.)
It seems also to be the rule in North Carolina, in thfe Supreme Court of the United States, and everywhere, that the time within which actions may be brought may be shortened if a reasonable time thereafter is allowed for the institution of suit, but that a litigant or claimant cannot be deprived entirely of his right to bring an action by an act of the state or legislature, as this would amount to a denial of j ustice. (Wheeler v. Jackson, 137 U. S. 245, 11 Sup. Ct. 76, 34 L. Ed. 659, affirming 105 N. Y. 681; Saranac v. N. Y. Comptroller, 177 U. S. 318, 20 Sup. Ct. 642, 44 L. Ed. 786; Mitchell v. Clark, 110 U. S. 633, 4 Sup. Ct. 170, 312, 28 L. Ed. 279; Vance v. Vance, 108 U. S. 514, 2 Sup. Ct. 854, 27 L. Ed. 808; Sohn
Where it is provided that the payment of bonds is to be made in a particular way or out of a particular fund, the statute of limitations does not begin to run until the fund has been provided. (Lincoln County v. Luning, 133 U. S. 529, 10 Sup. Ct. 363, 33 L. Ed. 766; State v. Lincoln County, 23 Nev. 262; Freehill v. Chamberlain, 65 Cal. 603, 4 Pac. 646; Robertson v. Blaine Co., 96 Fed. 63, 32 C. C. A. 512, 61 U. S. App. 242, 47 L. R. A. 459.)
That pursuant to an act of the legislature the courts will compel the levying of a tax for the purpose of paying a judgment recovered upon bonds has often been held. (Supervisors v. U. S., 4 Wall. 435, 18 L. Ed. 419; City of Galena v. Amy, 72 U. S. 705, 18 L. Ed. 560; City of Davenport v. U. S., 76 U. S. 409, 19 L. Ed. 704; County of Greene v. Daniel, 102 U. S. 187, 26 L. Ed. 99; Lowell v. Boston, 111 Mass. 460, 15 Am. Rep. 39; U. S. v. New Orleans, 98 U. S. 381, 25 L. Ed. 225; State v. Clay, 46
The objection that the acceptance of the bonds directed by the statute would tend to disturb the friendly and harmonious relations existing between the two states, and other questions relating to the wisdom or propriety of the statute, are for the legislature, and not for the executive or the courts to determine. It may be conceded that the courts could not, under any statute passed by the legislature, compel the governor to perform acts which ■would be in conflict with the powers conferred upon him by the constitution, and that he is absolute in all the prerogatives conferred upon him by that instrument. Neither the courts nor the legislature can deprive him of any authority conferred upon him by the constitution. The act in question is clear and positive in its direction that the bonds be accepted. It contains no qualification or condition that he may refuse to receive them for any reason. By its terms no discretion or judgment is vested in him. It does not relate to dr infringe any of his constitutional prerogatives. The statute merely directs him to perform a ministerial act, and the legislature could have directed equally as well that bonds as a gift to the state should be accepted by the state treasurer or other-officer or person. The constitution defines the powers of the governor, and provides clearly for the enactment of laws and the jurisdiction of courts.
If it be admitted that certain powers are vested in the governor by the constitution, which neither the legislature nor the courts can control, this act in no way relates to such powers, and is not governed or limited by any provision of the constitution, unless it be section 7, article 5, which states that “he shall see that the laws are faithfully executed,” and the one giving him the right to recommend to the legislature that this or any other act
Notwithstanding that we, may agree with his conclusions as to the policy or expediency of the statute, and as citizens or legislators would favor its amendment, we, as well as the lieutenant and acting governor, are bound to observe the constitution and the statutes, including the provisions for the issuance of writs of mandamus when any person refuses to perform an act “which the law especially enj oins as a duty resulting from his office or station.” He may recommend the passage of laws and
In Ex Parte Boyce, 27 Nev. 331, 65 L. R. A. 47, adopting the language of Justice Harlan and the Supreme Court of the United States in the Kansas case, we said: ‘•So, also, if it be said that a statute like the one before us is mischievous in its tendencies, the answer is that the responsibility therefor rests upon the. legislature, not upon the courts. No evils arising from such legislation could be more far-reaching than those that might come to our system of government if the judiciary, abandoning the sphere assigned to it by the fundamental law, should enter the domain of legislation, and, upon grounds merely of justice or reason and wisdom, annul statutes
It may not tend to promote the best feeling for one state or neighbor or individual to acquire by gift or purchase, or otherwise, an indebtedness against another for the purpose of enforcing its collection; but to do so is not prohibited by any provision of the constitution. Individuals are daily acquiring, by gift, descent or purchase, indebtedness against others and bringing suits for the enforcement of the demands, and the courts provided by the constitution are open for the enforcement of these demands. There is nothing in the constitution which in the remotest degree inhibits one state from enforcing against another any demand, whether acquired by gift or otherwise, and the. state is as free as an individual to accept evidences of indebtedness and to collect the amount due.
The claim that the bonds may not be accepted because the friendly relations existing between the two states would be destroyed is at variance with the decision of the Supreme Court of the United States in the case of South Dakota v. North Carolina. In that case repudiated bonds issued by North Carolina to aid railroads in the
The cases are not uniform as to when or the circumstances under which mandamus will issue to control the action of the governor. That the writ will issue to compel the chief executive to perform a ministerial act is in accordance with the best authorities, and has been the law of this state for more than forty years, and since the issuance of the mandate of this court under a decision written by Chief Justice Beatty directing Governor Biasdel to sign and issue a patent for land. (State ex rel. Wall v. Blasdel, 4 Nev. 241.) It was said in the opinion that “if the law as passed is valid it must be enforced.”
There was further recognition of the right to have the writ of mandate issue against the chief executive, when the conditions warrant, in the case of Lieutenant-Governor Laughton v. Governor Adams, 19 Nev. 370.
In the case of Waterman we discharged the petitioner from arrest under an executive order issued by the-governor of this state upon the requisition of the governor of Iowa because the indictment did not state facts constituting a crime. (29 Nev. 288, 11 L. R. A. (N. S.) 424.)
In the case of Gray v. State, 72 Ind. 568, the court held that the writ of mandate will lie against the governor to enforce the performance of a ministerial duty not resting in his discretion, and that a ministerial act is one which a person performs under a given state of facts and in a prescribed manner in obedience to legal authority, without regard to his own judgment upon the propriety of the act being done.
In Middleton v. Low, 30 Cal. 597, it was held that when a ministerial duty is specially devolved upon the governor by law, which the legislature might have, conferred upon any other state officer, the governor may be compelled to perform the same.
In Harpending v. Haight, 39 Cal. 189, 2 Am. Rep. 432, a writ was issued commanding the governor to cause to
In State v. Salmon P. Chase, 5 Ohio St. 528, it was held that although the governor, in the exercise of the supreme executive power of the state, may, from the nature of his authority, have a discretion which cannot be controlled by the courts, yet in regard to a ministerial act which might have devolved upon any other officer of the state, and affecting any specific private right, he may be made amenable to the compulsory mandate of the court by mandamus.
In Chumasere v. Potts, 2 Mont. 243, a writ was issued commanding the governor, with other officers, to canvass the vote.
In Magruder v. Swan, 25 Md. 175, it was held that the governor, like other officers, in the discharge of mere ministerial duties, is subject to the writ of mandamus, which cannot be denied to a suitor without acknowledging an authority higher than the law.
In State v. Martin, Governor, 38 Kan. 641, 17 Pac. 162, it was held that where purely ministerial duties are by statute imposed upon the governor, and these duties are only such as might be devolved upon any other officer or agent, their performance may be compelled by mandamus or injunction. The court said: “In the case of Marbury v. Madison, 1 Cranch. 163, 2 L. Ed. 60, Chief Justice Marshall uses the following language: ‘The very essence of civil liberty consists in the right of every individual to claim the protection of the laws, whenever he receives an inj ury. One of the first duties of government is to afford that, protection.’ And further on in the same case, page 166 (1 Cranch. 2 L. Ed. 60), after stating that the courts cannot control executive discretion, the great chief justice uses the following language: ‘But when the legislature proceeds to impose on that officer (the secretary of state of the United States) other duties; when he is directed peremptorily to perform certain acts; when the rights of the individuals are dependent on the performance of
The United States Supreme Court, speaking through Chief Justice Marshall, in the case of Osborn v. United States Bank, 22 U. S. 866, 6 L. Ed. 204, said: “Judicial power, as contradistinguished from the power of the laws, has no existence. Courts are the mere instruments of the law, and can will nothing. When they are said to exercise a discretion, it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law; and, when that is discerned, it is the duty of the court to follow it. Judicial power is never exercised for the purpose of giving effect to the will of the judge; always for the purpose of giving effect to the will of the legislature; or, in other words, to the will of the law.”
In State v. Cummings, 36 Mo. 263, 278, it is said: “It is not for the judiciary to inquire whether laws violate the general principles of liberty or natural justice, or whether they are wise or expedient or not. They can only declare whether they are repugnant to constituí tional provisions and limitations. It would be a violation of well-established and safe principles for courts to resort to any other test. There is no higher law by which we can be governed. An attempt by judicial construction to obstruct a law, or a failure to enforce it, would be monstrous usurpation. We cannot make or repeal a law; we are not intrusted with any such power. If it is wrong, unjust, or oppressive, an appeal must be made to the people in their political capacity at the polls to apply the remedy. We will not attempt to exercise judicial legislation. We can scarcely conceive of anything that would be a compensation for introducing into
The petitioner has filed a special reply brief, citing extracts from numerous authorities holding that the courts have discretion as to the issuing of the writ of mandate in aid of private rights, but no such discretion when it is invoked in matters of public right. Among these authorities are: Tapping on Mandamus, 54, 56, 287, 288; 2 Dillon on Municipal Corporations, sec. 695; New Haven Co. v. State, 44 Conn. 376; State v. Doyle, 40 Wis. 220; Spelling on Inj unctions and Extraordinary Remedies, sec. 22; Savannah Canal Co. v. Shuman, 91 Ga. 402, 17 S. E. 937, 44 Am. St. Rep. 43; 19 Am. & Eng. Ency. Law, 753. If the court has any discretion in a case like this one, it ought not to exercise it by denying the writ, which would result in a judicial repeal, the usurpation of the powers of the legislature, and a dangerous precedent. If the plain terms of this act may be thus set aside, no statute would be certain, no litigant or counsel would be sure of the law until finally announced according to the varying moods of the court, and no person would be secure in his rights. In Russia, the czar at pleasure sets aside the acts of the duma, passed by the people’s delegates. The highest officers in this government, as well as kings and emperors in the leading constitutional monarchies of the world, are without power to set aside the laws of the country. The Young Turks deposed a sultan for his failure to observe the requirements of the constitution. For the purpose of giving soundness and stability to our laws, the people have wisely provided in the organic act of the state that bills, whether for proposed statutes or repeals, must pass both branches of the legislature, and have given the governor the power to veto or approve before they become effective. If this and other statutes, when their language and meaning are clear, could be set aside or ignored at the discretion or changing will of succeeding governors or courts, the laws might become nearly as uncertain and
For us to hold contrary to the plain meaning, that the constitutional provision that the governor shall faithfully execute the laws allows him to set them aside at will, would be a misconception, sarcasm, and travesty upon the organic act upon which the state stands.
If the members of the legislature agree with the views of the lieutenant and acting governor, they, and not he nor the courts, have the power to repeal or amend the law for the reasons he advances.
We cannot assume that the new executive, who will take office on the first of the year, will fail to follow .the law as construed by the court, or refuse to obey the statute if it is not repealed or amended, or if the requirement of the act remain unabrogated.
The writ will issue as demanded in the petition; but in order to give the legislature, which is about to convene, and which is the only branch of our government having power to change a statute, an opportunity to consider the objections which have been made to the acceptance of the bonds, and to repeal or amend the act if it desires, the service and execution of the order will be stayed until the close of the sixty-day, session of that body and the further order of the court.
Concurrence Opinion
concurring:
I concur in the judgment of Justice Talbot. I served in the legislature of Nevada in 1901 which enacted this measure, as a member of the assembly from Ormsby County. At the request of the then governor of Nevada, Governor R. Sadler, I introduced the bill in question “by request,” which the legislative records disclose, authorizing the state to accept and collect grants, devises, bequests, donations, and assignments. The bill passed both houses of the legislature unanimously, and was signed by the governor. This statute is the only one of
These North Carolina bonds, involved in the present case, are the second gift offered to the state since the passage of this act about ten years ago. At the time of the passage of this act before the legislature, no question of policy or expediency as to the acceptance of state bonds, such as are involved in the present case, was debated or considered, and knowing personally that if such a proposal of bonds was made as is involved in the present proposed gift that I would not. have voted as a legislator for this bill, unless amended so as to avoid such a necessity of enforcing the collection of bonds of the character offered in the present case, by reason of conditions existing at the time of their issuance and the alleged questionable original indebtedness they were issued to redeem, I would be pleased to see the incoming legislature amend the law to cover this situation so as to avoid this necessity.
As a judge of this tribunal, however, the law, as enacted by the legislature, until amended or repealed by the legislative department, must take its course, any personal sentiment to the contrary notwithstanding. Under the constitution of the United States, which is the supreme law of the land, and the constitution of Nevada, which we are obligated to obey under oath, we must order enforced any valid law irrespective of sentiment, and against any executive officer enjoined by law to a performance of a ministerial duty if he fails to execute the law. In this great country of ours, as it should be, under a constitution which was ordained to make all men equal under the law, no man is above the law whether he be the President of the United States or its lowliest citizen—
I especially desire to emphasize my approval and concurrence in the opinion of Justice Talbot to the effect that mandamus lies to enforce the nonperformance of a legal duty ministerially enjoined by law on the acting governor or any other executive officer, in view of the position taken so decidedly by the attorneys for the acting governor that mandamus will not lie against a chief executive of the state, and to check as far as lies in my power the constant and widespread attempt throughout the land to usurp the powers, which the framers of our constitution especially delegated and vested separately in the three coordinate branches of our government.
The present case typifies to a nicety the position I desire impressed, and the evil I desire checked, in the tendency of one department of our government to usurp the powers of the other, and which are expressly delegated by the framers of our government to the three coordinate branches, and discloses how courts and judges and executive officers, swayed consciously or unconsciously by sentiment, may usurp or encroach on the powers vested in other departments, and violate the spirit of our constitution, and which, if unchecked, will ultimately nullify the grandest scheme of government ever proposed by man.
The act in question was passed by the legislature, which has the sole power, subject to the veto power of the governor, to pass the measure. The act in plain terms states that the state shall accept state bonds, devises, bequests, and assignments. The question of
While personally we might wish that the act reposed a discretion in the governor for the purpose of refusing to accept the bonds proffered in the present case, yet, as judges interpreting the law, we have no alternative legally than to declare the law as we find it. Personally, I believe the state and its business should be conducted on the same business plane as that of any private citizen, and in so far as the acceptance of gifts is concerned, the state ought to be in the same position to accept or decline a gift, when the state’s prestige or standing might be injured in so accepting, and where it is necessary to sue to enforce a voluntary gift. It should also be in a position to consider any strings attached to the proposed gift, from whom, and the character and nature of the gift; but these are matters to be remedied solely by the legislative department, and not within the province of the executive or judicial departments.
As to the discretion reposed in this court to refuse to issue the writ of mandate, because of the alleged want of value in the bonds, and on the principle that courts will not deal with frivolous or valueless things, we are legally precluded from so acting, because the bonds on their face show a value of over $401,000, and a market value of over $100,000, and the Supreme Court of the United States and other courts, even including the Supreme Courts of North Carolina and Nevada, have held that bonds of a sovereign state are presumed to be valid until otherwise shown, and the statute of limita
The law in question is conceded by all to be constitutional, and it is the legal duty of the executive officer, designated in the act, to perform the duty enjoined on him as ordained by the legislative department, and it is our judicial duty to declare the law, and order its enforcement. If an executive officer can set aside one valid law, he can set aside any. other valid law and place himself above the law.
To deny the writ we would have to usurp a power and right vested solely in the legislative department, and take a contrary view to the United States Supreme Court and the Supreme Courts of Nevada and North Carolina
Under the judgment and power vested in this court by the constitution, the writ must issue in pursuance to the law, but its execution will be temporarily stayed for a period of time to extend until the close of the legislature, which is about to convene, so that an opportunity may be had to consider whether the legislature is desirous of amending the law as above indicated to meet the objections interposed to the acceptance of the proposed bonds or to repeal the act.
'If the language remains unchanged, the writ, which will now issue, will become operative; in the interim, for the reasons above assigned, the execution of the writ will be temporarily suspended, and until the further order of this court.
Dissenting Opinion
dissenting:
I am unable to concur in the conclusions reached by my learned associates in this proceeding. I think the writ should be denied.
Conceding that the act of 1901 is mandatory, and that the governor has no discretion to refuse any gifts, bequests, assignments, etc., metioned in the statute, nevertheless, I think it is clear from the language of the statute that such duty is only imposed where the grant, devise, bequest, donation, gift, or assignment is as to a thing of value. There is no allegation in the petition that the 145 bonds of the State of North Carolina tendered to the governor for the benefit of the State of Nevada are of any value whatever. The respondent has alleged in his answer, as a reason for his refusal, that the said bonds are of no value whatever; that they were fraudulently issued, and have been repudiated by the state issuing the same. These bonds, upon their face, would naturally arouse some suspicion as to whether they were of value. They were all more than ten years past due when offered. The face value of the bonds was $1,000 each, a total of $145,000, upon which unpaid inter
The bonds in question tendered to the State of Nevada are apparently in a very different situation than the bonds given to the State of South Dakota under the provisions of a similar act to that involved in .this action, and which were sued upon by the State of South Dakota in the case of South Dakota v. North Carolina, 192 U. S. 287, 24 Sup. Ct. 269, 48 L. Ed. 448. The bonds given to the State of South Dakota were never directly repudi
It does not appear that the bonds in question in this proceeding are secured by any mortgage or other collateral security as in the North Dakota case. Even if we are to indulge in the presumption that these bonds were issued in pursuance of law, and were untainted by any fraudulent proceeding, nevertheless a grave question is presented as to the means of enforcing any judgment which might possibly be obtained in the Supreme Court of the United States.
During the progress of the argument in this case one of the counsel for the petitioner stated that he believed these bonds, in their present form, had some market value, and was of the opinion that it was about 25 cents Gn the dollar of the par value of the bonds. I do not think that this statement should be considered as establishing that the bonds have any value whatever in the face of a failure to make any allegation in the petition that they were of any value and an absolute denial that they were of value made by the answer. It is conceded that in the hands of individuals they are absolutely uncollectible. When the property of the state, the most that can be said is that the state might institute a suit for recovery upon these bonds against the State of North Carolina in the Supreme Court of the United States. In such action the State of North Carolina could, if such were the fact, show that the bonds were never legally issued or were fraudulently issued. If these questions should be resolved in favor of the bonds, there would
This court, to refuse the writ in this case, would not have to go any further, in my judgment, than it went in the case of State v. Beck, 25 Nev. 113. In that case this court, by Bonnifield, C. J., said: “Whatever may have been the legislative object in passing the act, we presume it was a good one, but we cannot indulge such violent presumption as that the object was to compel a county to pay a claim which has been finally adjudicated by the courts to be fraudulent on the part of the claimant. ‘Mandamus should not be be granted to compel a technical compliance with the strict letter of the law, in disregard of its spirit.’ (Wiedwald v. Dodson, 95 Cal. 450, 30 Pac. 580; State v. Board Comrs. Phillips Co., 26 Kan. 419; High, Extra. Rem., 3d. ed., sec. 9.) The writ is denied.”
In the case of People v. Board of Assessors, 137 N. Y. 201, 33 N. E. 145, the court said: “The writ of man-
Without considering any of the other questions argued in this proceeding, I am of the opinion that the failure to allege in the petition, or otherwise establish, that the bonds offered were of any value is conclusive of this case. The burden was on the petitioner to allege, and, if denied, to establish upon the hearing, that the bonds were of some substantial value. The petition only alleged that certain bonds were tendered to the respondent as acting governor, for the benefit of the state, without any allegation whatever that they were of any value. Upon their face they appeared to be long past due, and as having never been acknowledged as being valid subsequent to their issue by the payment of interest thereon.
■ The refusal of the respondent to receive the bonds in question was based, among, other grounds, upon the ground that they were valueless. If the respondent was correct in his conclusions in this regard, he was, in my judgment, acting within the law in refusing to accept the bonds. It was incumbent upon the petitioner in this proceeding to allege and prove that the bonds tendered to the governor for the state were of some material value, and, there being a failure to make such an allegation, the petition did not state facts sufficient to entitle the petitioner to any relief. The mere assertion by coun
From the entire case, and particularly upon the ground of failure to allege or prove value in the bonds tendered, it is my judgment that the writ should be denied.