Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1902-03-15

ordinary civil actions. TN the con-
trary, that section authorizes the is
suance OF the writ upon affidavit and
. application of the party beneficially !,
interested, which to say the least par
takes very much of the character of |
a motion upon affidavit, under our civ
/ il practice act; and white it is the |
J practice to consider the affidavit for |
y, the purpose OF determining whether |
the showing made is sufficient upon !
which to base the issuance of the writ |
or to entitle the party to the relief |
demanded, yet it may well be doubt |
ed, under the provisions of another |
section of the civil practice act Comp |
Laws. 1900, Sec. 3602), relating to in
.ormalities and defective titles in af- /!
! ;idaFits, whether any title whatever
! is necessary to make it sufficient as
basis. where it appears from the aft
da't that the remedy is sought by the
! party benefcially interested The
lact is sufficiently shown by the atFi-
Gavit in this proceeding, and the mo-
zion TO Guasiii and dismiss viii there
fore be denied.
Many objections have been made by
the respondent aginst the right of re-
s:,cr TO the reremptory writ, based
upon lAS dACOIiSCllullOudllly VI I1S ACT
OF 1901, supra, but it is a well estab.
lished rule of this and other courts.
that constitutional questions viii new
CT be passed upon, except VIXEN absO
iutely necessary to properly dispose
OF the particular case, and, as We view
this proceeding, 1t is unnecessary I'M
der the rule stated to determine whe-
, Their said act is or is not constitution
al. We shall, therefore, contine the
J opinion to the consideration of the
point whether this court can in man
damus compel the respondent, under
, the law and the facts of this record,
20 appoint the appraisers named in the
) act of 1901. 1t is we'll to note here,
that it is shown by paragraph or the
= REALTORS petition herein. that the res
pendent heard the petition to appoint
1 appraisers on the 29th day of Novem-
y Der, 1901, and thereafter announced
J. his decision thereon refusing to ap-
! point appraisers of such property, or
z to do anything in the premises reQuir-
r ed, assigning as reason therefor that
d the said act is unconstitutional. This
: is sufficient statement of the facts
l. considered, taken in Connection with
# the law, upon which to base our con-
) clusion.
h A discussion OF the provisions of the
Il act is therefore necessary in order to
It determine just what the duties of the
S respondent were, and to understand
h the rights and status Of the relator
t Ithereunder and in this proceeding.
r From the language used in the act it
d is apparent that the legislature in
$ tended to accomplish certain definite
y purposes. It intended to validate
$ contracts of Boards of County Com
y missioners which had been adjudgeG
v void by the courts for the reason that
e such contracts had been entered int
n in violation of the provisions of the
1t general statutes defining the powers
er and duties of such Boards, and there
t, by create legal demands against tn,
ot counties, and give an additional meth
IS Cd for asserting such demands agains
t. them. Whether or not the Legislature
Of OF this state possesses such power ov
n er the counties, as to establish lega
&c demands arising out of contracts de
n ciared void by the court, it is not on
s. purpose either to discuss or deter
as mine, but it is we'll to note that tn
is decisions Of the Supreme Court OF tn
~ State of California, cited in supper
lie OF such power, are based upon cor
Id stitution containing no such limits
e. tons upon legislative power as ar
IS found in the constitution of this state
u Assuming, therefore, that the act
On constitutional, what was the status 9
is relator with reference to the act, whe
MT it petitioned the respondent to appoin
It, the appraisers named? It was Seei
p ing to establish legal demand +:
IL gainst Washoe county by the metho
prescribed in that act. The act itse
IS did not fix or establish a demand {
no o1ofn no M
p- unless certain steps were taken an
ce certain things done, within the tim
at limited, the relator could have u
lp- rights whatever against the count
in growing out of his void and illeg:
IN contract. In fact, relator denies thu
te, the act is of that special character e
in tablishing its demand against WashC
ro County Neither can it be elaine
at that its demand against the count
ex was established when It petitione
ais the respondent to appoint the apprai
)st ers. 1t will be observed that the a
en- does not require veriication of Il
in petition, and certainly the legislatu
he did not intend that the counties
CT this State should become liable f
nd any amount by the mere presentatit
ay. to a District Judge of an unverifit
ice petition asserting demand. 1t W
1al be further observed. that under Il
,es language of the statute the Dis+ri
he Judge to be petitioned may be in
Elk county other than the one sought
dy. be charged with liability under II
not act and while it is true, the act
ties summary in character, and provid
the a summary mode of procedure, Il
va District Judge is required by the q
lie, to do something more than appoint q
by praisers upon being asked 1t !
,re- quires in direct terms that he sh,
!so hear the petition, and it cannot
1t doubted that the power to hear, &C
the ferred upon judicial officer, CARR
mp. with it the power to determine or
oes eide II such was not the intenti