6 Nev. 68 | Nev. | 1870
By the Court,
The Legislature of this State in 1869 passed a certain statute, in which, among other things, it is provided that “ whenever, within eighteen months from the passage of this Act,.the Virginia and Truckee Railroad Company, a corporation existing under the laws of this State, shall have completed the construction of a first class iron raiboad from some point within the limits of the city of Virginia to the city of Carson, on the line of a railroad between said cities, which line shall pass a point not more than twelve hundred feet west of Trench’s mill, in Silver City, Lyon County, and the same shall be in complete readiness to receive the rolling stock proper therefor, the Board of County Commissioners of Lyon County are hereby authorized and directed to prepare and issue the bonds of said county to the amount of seventy-five thousand dollars, in the form hereinafter specified, and deliver the same to the Virginia and Truckee Railroad Company for its benefit. * * * * Immediately after being notified by the company of the fulfillment of the conditions upon which the said bonds are to issue as above stated, the Board of County Commissioners shall proceed to satisfy themselves, by personal inspection or otherwise, of the fact of the performance of said condition; and on being so satisfied shall, without delay, prepare, issue and deliver the bonds as above directed.” (Stats. 1869, 62.)
Within the prescribed time the company completed its road from Virginia City to Carson City, in a line which passed no point west of Trench’s mill in Silver City nearer than twenty-four hundred feet. Within the same time the company built a branch to a point within three or four hundred feet of said mill. The defendants, county commissioners, upon personal inspection of the work decided that the condition of the statute, so far as related to their county, had not been performed, and declined to issue the bonds. This action is to compel them so to do by peremptory writ of mandamus from this Court.
But counsel for plaintiff claim that the condition has been substantially complied with, and to that end offer evidence to prove that to have built the road on a line passing the point named, would have rendered it an impracticable road for working purposes; in other -frords, as is claimed, not a first class road; and that the point touched is the nearest practicable point.
There is no question of the rule invoked ; and did it appear by the excuse made that the condition had been substantially complied with, that is, that the variance was immaterial, this Court would hold the condition performed. But it is not a substantial compliance with a contract to perform another and different matter, and the fact that to have built the road as directed would have been to ruin it, simply proves that the plaintiff agreed to do something which it either could not do, or deemed it better not to do ; but it was bound to do that thing substantially before it could claim any performance from defendants.
A condition precedent “must be strictly performed in every particular in order to entitle the party whose duty it is to perform it to enforce the contract against the other party.” (Story on Contracts, Sec. 82.) This is the general rule, and applies with as much force to contracts of the nature of the one at bar, as any other. (Parker v. Thomas, 19 Ind. 213; Chapman et al. v. Mad River & L. E. R. R. Co., 6 Ohio, [State] 119; Middlesex Turn
It is further proved that the present road is of more benefit to the people of Lyon County than if constructed as prescribed; and, therefore, the Court is urged to look beyond the letter of the law and assume that the intention of the Legislature was to benefit the people of Lyon County with railroad privileges, but that it was mistaken as to the precise point which the railroad should touch to accomplish the object, and that the point of passage was really merely incidental to the main object. In other words, to take what counsel agree to have been the evident intention of the legislative body, and carry out that, despite the language of the statute.
The duty of every Court in construing a statute is to seek the legislative intent to reach the object sought to be expressed and accomplished; but in so doing a Court is bound by rules; it cannot go fishing in the minds of its members or the legislative mind to reach the desired end; and the first step is, if possible, to ascertain the intent from the language of a statute, and when that is clear and unambiguous, then enquiry stops, because the law says it shall so stop. (Lewis v. Doron, 5 Nev. 400; Commonwealth v. Fitchburg R. R., 8 Cushing, 240.)
Where is the ambiguity in the language under consideration ? It is as clear and explicit as possible. It says to plaintiff: If you build your railroad on a line which will pass a certain point, Lyon County shall give you her bonds ; if not, not; and that is all there is of it. The argument of counsel upon the trial showed the danger of the course proposed; one suggesting one object, one another; but the answer to all is, that the language of the statute is so plain that he who runs may read, and puts the primary object of the Legislature beyond dispute. That primary object was, to have the plaintiff’s road to pass Trench’s mill in Silver City on the west, not more than a specified distance therefrom. What ulterior purpose was to be a’ccomplished — whether to accommodate Silver City, or the mills, or to put taxable property in the county — is simply conjectural, and might have been one thing, or it might have been another; but guessing is not, or at least should not be, the business-of Courts. Had plaintiff built its road through the center of Lyon.
That was not the contract, would be the answer; you are a volunteer. And so here, the plaintiff did not fulfill its contract, but volunteered to do something else. The defendants, if private parties with full natural powers, could refuse acceptance.; as special agents, they have no option but to do so. (City of Aurora et al. v. West et al., 22 Ind. 88.)
The whole question involved is, whether building a railroad twenty-four hundred feet from an object named is a substantial compliance with a direction or agreement to build it not more than twelve hundred feet therefrom.
It takes no great amount of law or logic to solve the problem. Of course it is no such compliance, and all suggestions of impracticability of compliance or additional benefit from the deviation are beside the point.. The matter stands as if the Legislature had said to plaintiff: If you, in building your road from Virginia City to Carson City, can pass a certain point, still keeping your road first-class, you shall have seventy-five thousand dollars in Lyon County bonds; if not, then you must go without them. The plaintiff failed to make the connection, and must consequently fail to receive the money.
For the commissioners to have taken any other view would have been to exceed their powers. For this Court to do as asked by plaintiff would be not to interpret a contract, but to make a new one. No Court has any such power.
The application for the peremptory writ is denied, and the proceeding dismissed at plaintiff’s costs.
