Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1899-04-21

- may
that the persons whom il is Sonpht +,
coeice 10y The writ will refuse !n ,er+n.,
their duty when tho proper titnn a.-,yn.
IL IS therefore incumbent On The rela1o
/" show actual omissinr on the rarf q
the respondent to perfor m the reuu,ro,
act, and since there can be 40 such o,nis
SION before the time has arrived for ihc
performance of he duty, the writ will
not issue before that time. Tn o.ho
words, the relator must show that III.
respondent is actually in default il, Nh.
performance of = legal duty then dine a
MS hands, and no threats or p~redeteruin
alton can take the place of such defaul
before the time arrives when the duty
should be performed, nor does the law
contemplate such a degree of diligence rs
the perform nce Of a duty not vet due"
the REALTORS must fail in this action.
State VS.. Piper, IL New. 233.
State VS.. Rising, % New. I64.
2Spelling, 1885.
High, Extraordinary Remedies
Sec. II.
rms Court has also held thai the W.T.
should not issue unless tho Relotors
show a clear legal right to the relief de
manded.
State VS.. LaGIave, p New. 40,
bus 1t is claimed by the REALTORS that
the Judgment and decree of Injunction
SET up IN tie answer is absolutely void
"a nullity-of no binding force or effect
against the respondents for the reason
that the District Judge who presided At
the trial was al inhabitant of the Citv of
memo ana the owner of property situated
therein subject to taxation. and therefore
mad such an interest in the suit as t, dis
Qualify him from acting III the case. Our
statute contains . provision, common
to nearly all States, prohibiting a Judge
acting IN any action or proceeding 20
which he is . party or in which ne is in
tsrested.
Gen. Stats. Sec. 2464.
his cour has held that tho rule of the
common law which made the action Of a
Judge interested in the Case an Irregular
ity or error to be corrected upon All an
peal by a reversal of the judgment,
had been so changed by u statutory
provision ~ to render such Indictment
not only voidsble but void.
Frevert vs.. Swift, 10 Nov. Sa-
by the facts shown Was the District
Judge disqualihed7 This Question hss
been very fully and ably discussed by
the Supreme Court of California in Mey-
or vs.. The City Of San Diego. That action
was instituted for the purpose of setting
aside as illegal and void a contract o. tho
City involving a large expenditure OF
money of the City to be obtained by the
sale Of its bonds, and to enioin The ia
suance and sale of the bonds "a ,.arry
out the alleged illegal and void cI,tr.rt.
The bond issue had teen voted al :.
special election called under all ordinance .
the City, submitting to the electors the
proposition. The law under which the |
was held, anous other uaraers.
directed the municipal authorize, to levy
ana collect al aunuAl special tax suf-
lrient to pay Interest aid provide a sink /
fund for the ultimate REDEMPTION ofi
he bonds The Practice Act Of that
State dlsquahfying the Judge contains !
he same ptOvI>iunS A our Act above
,lted. \ motion for i change OF vcuur
because Of the disqualification OF h uiria.
udEo was made, upon the showing tAa;
ne was the owner ef real eSIat; situated
.lid taxed III the Civ of San ni,.., Ior
nuhl"lpal purposes. and ttNuuir FIR In,
OF the u0ujcj iiDj-tteInp-,
rowing out of the matters then Ir it;i-
he N"prcinr Court N ,i.~H,ei.g the
question raised ty tn, mu..r. .sr the
Of Venue, after discussing many
authorities say: "Iuu>, the interest
'h1ch one has III a public question. mere
Y becallHe lie il a member Of the civic
to De affected by thcquestiun.i Is not
he interest which the law has in mii,d /
II the case from which we have lust
uoted the judge in probate was not hid
be disqualified because in i will before
I'm there was a be9ueSt Of money to
10 be devoted tuih lie ana ben
NJ OF thclgtnt persons in certain owns.
I one OF which the judge was an inhabi-
Ant =. And so, in Sauls VS.. Free
"a Fla. POO, 4 South. 525, the fact that .
he Circuit Judge, with other registered ,
oters OF the county, had signed a pc ,
ton addressed to the County Commis-
asking for a change of the county ,
te, did not d~i>qualify him for in +
rest from sitting in a mandamus pro =
ead!ng to compel the Commissioners TO
Ill an election upon the question. IL a
lese and like cases the so-caIled interest +
the judge is found to he remote, doubt d
IL anu speculative. III no way certain in {
ct nor susceptible of precise measure
.enI. But upon the other hand, where. II
any litigation, there is auy ce, tain. \
unable, p%ecuniary or proprietary in
rest or relation which will be directly
terted by the judgment; that NAV be
ndered In every such case without ex- .
so far az an exhaustive exami-
'tion Of the authorities goes, the dis
of the judge is held to exist. g
as the judge any pecuniary or personal :
~