and claimed and used them without objection from defendants until some time in January, 1883. On the nineteenth day of January, 1883, the defendants, while plaintiff was absent, and without his consent, and by "force and arms," took and drove away the mules, claiming them under the bill of sale of November 21, 1882.

The action was brought to recover the property and for damages, and the verdict was in favor of the plaintiff for the return of the property or one thousand dollars, the value thereof, and three hundred dollars damages for wrongful detention of the same.

On the trial of the case, among others, the following special question was submitted to the jury:

2. "Was there a sale and delivery of the property in question, for a valuable consideration, by Adams & Cunningham to the plaintiff, Lufkins? and if so, did the defendants assent or acquiesce in such sale and delivery?"

This question was answered by the jury in the affirmative, and no other special verdict returned is in any manner inconsistent with this one. This special finding of the jury supports the general verdict, and is conclusive upon the question there submitted, if there is any evidence to sustain the finding.

At the trial, the defendant requested the court to instruct the jury to find specially on certain other questions, a part of which were submitted, and others refused; and the defendants excepted to the ruling upon the questions refused, and assign the same as error.

By our code, section 385, it is the province of the court to determine as to what particular facts the jury shall find specially, and neither party has a right to dictate the terms of such questions, and for refusing to comply with such request no error can properly be assigned.

There are a number of assignments of error in the record as to giving certain instructions to the jury, as well as to the refusal of the court to give others, which assignments need not be noticed in detail.

We are unable to find any error either in the instructions given or refused. Counsel for defendants urge that the court erred in refusing to give the last instruction requested, which is as follows: "On the undisputed facts in this case, defendants are entitled to a verdict of no cause of action."

This request was made on the assumption that there was no evidence in support of the plaintiff's claim.

We have carefully examined the record, and are satisfied that this assumption is not well founded. There is some evidence to support the verdict, but we deem it unnecessary to comment thereon at length. The circumstances surrounding the parties, the apparent motive that governed the parties when the transactions were had, the apparent acquiescence of the defendants in the sale to plaintiff, the manner in which the defendants obtained possession of the property; in short, the whole case is such that we think it was properly submitted on the evidence and instructions to the jury to determine who had the better right and title to the property: Monarch G. & S. M. Co. v. McLaughlin,

1 Idaho, 651; Brown v. Brown, 41 Cal. 88; Trenor v. C. P. R. R. Co., 50 Id. 222.

We are further satisfied, in view of all the facts and circumstances of this case, that justice has been done, and that the verdict and judgment should not be disturbed.

The judgment is therefore affirmed.

HAYS, C. J., and BUCK, J., concurred.

SUPREME COURT OF NEVADA.

STATE EX REL. HARRIS v. BLOSSOM.

Filed March 30, 1886.

PUBLIC OFFICES, DE FACTO and de Jure.—If an office such as a board of school trustees is filled, and the duties appertaining thereto are performed by officers de jure, other persons, although claiming the office under color of title, cannot become officers de facto. APPLICATION for mandamus. The opinion states the facts. T. Coffin, for the relator.

D. W. Virgin, for the respondent.

LEONARD, J. Relator seeks to compel the payment of two certain warrants drawn by the auditor of Douglas county upon respondent as treasurer thereof, on account of salary of S. Somerfield as teacher in school district No. 2, Douglas county, for the months of September and October, 1885, said warrants having been duly assigned to relator. In November, 1884, J. Q. Adams, H. Vansickle, and J. S. Childs were elected school trustees of said district for the term of two years. In March, 1885, the legislature passed an act providing for the election of new school boards in all the school districts of the state, on the second Saturday in May following, and also that the new trustees should assume the duties of their office on the first day of September, 1885. Under the statute named, M. Harris and two other persons were elected trustees, and they thereafter qualified according to law. But one public school was required in said district, and on the fifteenth day of August, 1885, the old board held a public meeting and employed a sufficient number of competent teachers for the ensuing school year, and M. Harris, one of the new trustees, was present at such meeting.

Under the statute the school year commenced September 1st, but it was the custom throughout the state to open schools on the first Monday in September, which, in 1885, was on the seventh day of the month. On the first day of September the new board took forcible possession of the only public-school building in said district, against the protest of the old board, and installed therein as teacher the said Somerfield, who was cognizant of the fact that other teachers had been employed

by the old board. On the seventh of September, and a long time thereafter, the new board had forcible possession of said school building. On the morning of the seventh, the old board went to the school-house and demanded the possession thereof for the purpose of commencing the school with the teachers employed by them. Possession was refused, and they then engaged another building in the district and placed therein their said teachers, where they continued to maintain the public school, until, subsequently, the public-school building was given up to them. Somerfield taught his school during the months of September and October.

On the tenth of September, 1885, proceedings were instituted in this court by the attorney-general to determine which of the two contending boards was entitled to perform the duties of school trustees. On the seventh of November we decided that the second section of the statute approved March 12, 1885, under which the members of the new board were elected, was unconstitutional, and that Adams, Vansickle, and Childs, constituting the old board, were the lawful trustees: 8 West Coast Rep. 100. The new board did not at any time discharge the teachers employed by the old board, or notify them to discontinue their schools.

The principal ground urged by relator in support of his petition is that Harris and others were the de facto board, and that their acts as such were good and binding in law, as to the public and third parties. The general principle stated by counsel for relator, that as to the public and third parties, the acts of de facto officers are binding, is well settled and admitted. But applying it fully to the present case, is relator entitled to the writ sought? From the admitted facts, can it be said that M. Harris and his associates constituted the de facto board? There were two boards, each claiming that the other was unlawful; each urging and maintaining the validity of its own acts; each proceeding as though the other did not exist, in the matter of employing teachers, etc. The old board denied by words and acts that M. Harris and others were trustees, and continued to perform all the duties of such officers as though the statute of 1885 had not been passed, or the new board been elected. If M. Harris and his associates had not acted or pretended to act, it cannot be denied that the old board would have been trustees de jure and de facto. If the old was not the de facto board, it is not because it failed to exercise all the functions of a legal board, but it is because the new board did the same, and while so acting the statute under which they were elected had not been declared unconstitutional by any competent tribunal.

It is undoubtedly true, as claimed by counsel for relator, that the the new trustees would have become a de facto board if the old ones had not acted as such; but since they did act, as above stated, were they not the de facto board? Two physical bodies cannot occupy the same space at the same time, and two persons cannot be officers de facto for the same office at the same time. If an office is filled, and the duties appertaining thereto are performed by an officer de jure,

another person, although claiming the office under color of title, cannot become an officer de facto: McCahon v. Commissioners, 8 Kan. 441; Boardman v. Halliday, 10 Paige Ch. 232; Morgan v. Quackenbush, 22 Barb. 80; Cohn v. Beal, 61 Miss. 399.

The supreme court of Kansas has gone so far as to hold that a justice of the peace who refused to give up his office to his legally elected and qualified successor was the de facto justice, although upon the latter's refusal to deliver up the office the de jure justice obtained a new docket and commenced also to act as a justice of the peace, and acted in such capacity until the trial in the quo warranto proceedings: State ex rel. Day v. Buckland, 23 Kan. 259; Morton v. Lee, 28 Id. 286.

If the last case is good law, and as to that we express no opinion, it would sustain us in holding that the old was the de facto board, even though relator and his associates had constituted the de jure board.

Counsel for relator refers us to State v. Carroll, 38 Conn. 449, wherein it was held that a justice of the peace temporarily holding a city court under a law alleged to be unconstitutional was, at least under the circumstances of that case, an officer de facto, if not de jure, and judgments rendered by him were valid. "An officer de facto," said the court, "is one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid so far as they involve the interests of the public and third persons, where the duties of the office were exercised. . . . 4. Under color of an election or appointment by or pursuant to a public unconstitutional law before the same is adjudged as such."

Applying the doctrine announced to the facts of the case then under consideration, the court held that a justice of the peace of the town of New Haven, who, in the absence of the city judge of the city of New Haven, acted as judge of said city court, according to the provisions of a statute in force which had not been declared unconstitutional by any competent court, was a de facto officer even though the statute was in fact unconstitutional.

That decision has been quoted with approval by all courts, so far as we know. It certainly meets with our approbation, and it would sustain the claim of relator if the facts were that the old board failed to exercise the functions of trustees and the new one performed them.

The case of People ex rel. Norflut v. Staton, 73 N. C. 546, is also referred to and relied on by relator. In the report of the case there is an agreed statement of facts, but it is also stated that "the case agreed sets out many other facts not pertinent to the case as decided in this court, and the same are therefore omitted. All other facts necessary to an understanding of the case as decided are stated in the opinion of the court."

There was a vacancy in the office of superior court clerk, and under the constitution it was the duty of the judge of the superior court to fill the vacancy. Judge Moore had been the judge for several years, but the general assembly being of the opinion that his term had ex

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pired, an act was passed ordering an election. "Under that act," says the court, "Judge Hilliard was elected, and qualified, and took posses sion of the office, and held it, exercising all the duties and business of the office, until he was ousted under a decision of this court, declaring the act under which he was elected unconstitutional. So it is now clear that for all the time from his election, qualification, and indus tion into office, until he was ousted under the decision of this court Judge Hilliard was not the rightful judge, but he was the judge in fact."

Indeed, it seems to have been taken for granted that Judge Hilliari was the de facto officer. It appears that Judge Moore claimed the office, but it is not shown that he performed any of the duties incident thereto, except that he appointed Norflut clerk, two days after Staton had been appointed by Hilliard, and that on the first day of the first term after Hilliard's election, when Hilliard had taken the seat usually occupied by the presiding judge, he demanded of Hilliard the seat as judge which demand Hilliard refused; whereupon Judge Moore declared the court open for the transaction of business, and directed the sheriff to make proclamation. This the sheriff declined to do.

The principal claim of the relator was that since Hilliard was a de facto officer only, his appointee was merely a clerk de facto; but the court held that the appointments, like the judgments, of the de fact judge, had the same validity as though he had been judge de jure and de facto.

In State ex rel. Attorney-general v. Harris, 8 West Coast Rep. 98 we did not decide whether one board or the other was the de facte board. The only question there presented was, Which was the de jur board? We said a judgment of ouster must be entered against M Harris and others, because their election was invalid, and under clain of right to the offices in question they had exercised some of the fune tions of trustees, although the legal board had refused to give up their offices, and had continued to perform all the duties thereof. Writ denied.