Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1902-03-15
THE MORNING APPEAL
Carson City. Nevada.
Continued from Second Page)
SATURDAY, Mach Is, 1902.

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OF the District Judge imposed the
mere ministerial duty of appointing
appraisers, then it was useless to re-
Quire a hearing before appointment
and the language of the act requiring +
hearing is absolutely meaningless.
We realize that it is often a very DIFF
flcult matter to define the boundary
bewteen acts ministerial and acts JUDI
icial yet the language and purposes
of this act have clearly defined the
character OF the act of the District
Judge as prerequisite to his making
the appointment of appraisers. He
could appoint or refuse to appoint az
he might decide after the hearing ,
He exercised judicial functions. The
power to appoint or not to appoint was
a judicial act. 1t appears from reia-
tors petition, that the respondent did |
not refuse to hear. If he had, a DIFF ,
ferent question would have been pre- |!
sented; he did refuse to appoint.
We have. therefore, q statute author !
icing a judicial officer TO perform |
judicial act, with an admitted show
ing that he had acted, and it is well
settled by the decisions OF this court
that mandamus will lie to compel an
officer or tribunal exercising judicial
functions to act-to hear. but never
for the purpose OF reviewing OR cor
recting judicial acts however erron-
eous or wrong they may be.
tCayanaugh v. Wright, New. 1855;
State v Wright New 119: State V.
The Commissioners, 8 New. 3J9; Min
ing Co. v Rives, IA New. 49,: Hoole V.
Kinkead, 16 New. 2l7; Ry. Co. v. Dis
Il
Co. v. Lander Co., % New. Il; Hardin
V. Gu:herie, 63 Pac. New 744)
But relator contends that the act
is constitutional and therefore the de-
cision of the respondent holding it
unconstitutional is wrong. hence, it is
our duty it insists, under the facts of
the record. to compel the respondent
by the peremptory writ to appoint the
appraisers Even il we entertained
views as to the cCnstituticnality of
the act contrary to the views OF the
respondent relator would not be en-
titled to the writ, as the ;ssuanc. OF
the writ would require that we pass
judicially upon the facts presented in
the petition to the respondent, and
therein exercise power confer eo ex-
clusively upon him by the act of 1901.
and to that extent control and direct
his judgment in the premises. Again,
if respondent under the act had the
power or authority to determine the
coBstitutionality of the act, power
which the relator it seems does not
controvert then the issuance Of the
peremptOry writ involves a review and
determination in mandamus of the cor
rectness of the decision OF the resIOn
dent upon that constitutional ques-
ton; but if such power does not ex-
ist--the power to determine the con-
stitutionality of the act Of 1901 in
the proceeding before the respondent,
then the issuance of the pertmrtOrv
writ by this court requires that we
consider an. determine that respond
ent exceeded his power and jurisdic-
tion-a question which cannot be con
sidered and determined in rnancaInus
Adhering to the settled rules OF the
law we must hold that under the facts
OF this record mandamus will not lie
for the reasons given, and therefore
the peremptory writ will be denied
and the proceedings dismissed.
We concur:
Belknap, ].
Fitzgerald, J.
Filed March 10, 1902
Eugene Howell.
Secretary OF State and ex-off,cio clerl
Of the Supreme Court.
Filed With printer for publication
March Is, 1902. Eugene Howell.