the reflection that the Governor is not presumed to know what, if any, vacancy exists in any local county office. Section 455 has no reference to elections held for raising money for public improvements referred to in the latter part of section 451. The power conferred in this behalf is exercised under special provisions on the subject, found in the part of the Codes relating to county government. Rev. Codes, § 2933 et seq. The section can have no meaning unless the special elections referred to are to fill vacancies in county offices. By reference to section 453 to ascertain the contents of the proclamation which the board must issue, we find that it must contain "a statement of the time of election, and the offices to be filled"-matters wholly foreign to a purpose to raise money. Taking the first part of section 451, together with sections 453 and 455, related as they evidently are by the subject-matter with which they deal, viz., vacancies in public of fice, and bearing in mind that the several boards of commissioners are presumed to know what local officers are to be elected, we think it apparent that the Legislature intended to confer upon them the power to call and provide for the holding of elections to fill vacancies in county offices. It is true the legislation is crude and does not, by the most appropriate expressions, confer this power; nevertheless we think it sufficiently confers the power within the rule that these boards have only such powers as are conferred upon them by the Constitution and statutes granting and defining their powers.

If it be conceded, however, that these provisions, because of their indefiniteness and lack of directness of statement, fail of their evident purpose to confer the power, the relator' was entitled to the relief sought on the ground that, though the people are entitled under the Constitution to elect their own officers, they cannot exercise this right in the absence of statutory provisions regulating the mode and manner of holding elections. Sawyer v. Haydon, 1 Nev. 75; People v. Weller, 11 Cal. 49, 70 Am. Dec. 754: People v. Budd, 114 Cal. 168, 45 Pac. 1060, 34 L. R. A. 46; McCrary on Elections, § 142. The defendant, therefore, from either point of view, had no authority to put upon the ballot the names of any candidates other than those from among whom the electors were to choose officers for the regular ensuing term to begin on the first Monday in January, 1915.

There is some conflict in the decisions upon the question whether an election to fill a vacancy is valid in the absence of notice by the proper officer or authority. Some courts hold that where the Constitution or the statute provides that a vacancy in an office must be filled at the next general election, an election held to fill such vacancy is valid though notice has not been given to

People v. Hartwell, 12 Mich. 508, 86 Am. Dec. 70. Others adhere to the doctrine that if the proper notice is not given, the election is void. Beal v. Ray, 17 Ind. 554; People v. Weller, supra; State ex rel. Sampson v. Superior Court, 71 Wash. 484, 128 Pac. 1054, Ann. Cas. 1914C, 591.

Of

In the consideration of this case, the court reached the conclusion that, inasmuch as an election to fill a vacancy is a special election, though to be held at the same time as the general election, and inasmuch as the statute (Rev. Codes, § 455) mandatorily requires notice of it to be given by publication and posting at the voting places, and these prerequisites had been entirely omitted by the board of commissioners, the election, if held, would be wholly invalid. As was stated by this court in State ex rel. Breen v. Toole, 32 Mont. 4, 79 Pac. 403, we do not question the propriety of the rule that previous notice by the proper authority is not necessary to render a general election valid. The law fixes the time for holding these elections and also names the officers to be elected. these facts the people may be conclusively presumed to take notice; but they cannot be presumed to know generally that a vacancy has occurred which they may fill at the date of the general election, though they are presumed to know the date when the general election takes place. Hence, to say that formal notice by the board of commissioners as required by the statute is unnecessary, is tantamount to holding that such information as the one or more candidates may choose to impart to the electors is sufficient to meet all legal requirements, whereas it is often the case, as it was in State ex rel. Sampson v. Superior Court, supra, that the candidates are more interested in suppressing knowledge of their candidacies than they are to calling them to the attention of the electors. The rule announced in People v. Weller, supra, that the provisions of the statute relating to special elections are mandatory is sound, and serves best to prevent fraud and imposition, which are not only possible, but made easy under the other rule.

SANNER, J. While it is my belief that all questions fairly and properly raised in a cause presented to this court should, as a general rule, be considered and settled, there is always the consideration that an act of the Legislature ought not to be declared unconstitutional unless such conclusion is necessary to the decision. Fully appreciating the objections stated by the CHIEF JUSTICE to the validity of section 1, chapter 5, Laws 1913, I nevertheless feel that the question should be reserved because the failure of the county commissioners to call and notice the election in question would be fatal, whether a vacancy to be filled was demon

The letter of December 10th is, in substance, a request for respondent to return to Reno, and among other things contains these words:

"Well, all at once my eyes are open. Now I am ready to talk and if you think of me as you said you did then, and seemed to when you left, I am your friend in every sense of the word as you said you were mine, and want you to come here now and hear what I have to say."

The letters contained other statements indicating that the respondent had left the home, and that there was at least a temporary separation.

It is the contention of appellant that these letters purporting to have been written by the wife of respondent without the knowledge or assent of appellant, are objectionable under the rule excluding hearsay testimony, and also under the rule excluding self-serving declarations. There is nothing in the record, in our judgment, that would relieve these letters of their objectionable features in so far as their contained admission and declarations of acts of adultery are concerned. Each of the letters were subject to exclusion under all the rules invoked if they had been admitted for any other purposes than that expressly stated by the court when admitting them.

In reviewing this particular phase of the case, however, we must take into consideration the circumstances under which the letters were admitted, the purpose for which they were admitted, and the force and effect apparently given to them by the trial judge on arriving at his decision. A review of this phase of the case necessarily demands a consideration of the entire field covered by the evidence produced at the trial.

The wife of the respondent, the party from whom these letters purported to have emanated, was called as a witness by respondent, and her testimony given at the trial disclosed a chapter of her life which was replete with debauchery in which the appellant, according to her testimony, was the star actor. Her story told upon the stand, both in direct and through the course of the most searching cross examination, disclosed a series of acts of adultery committed with the appellant, not only in her own home, but in various lodging houses in the city of Reno prior to the 19th of October. She testified in detail as to the occurrences on the day of the 19th of October, the date on which it is alleged respondent discovered appel

of adultery on that date. Her testimony not only covers the ground covered by the inadmissible portions of the letters, but without referring to the letters goes much further, and much more in detail. In her testimony she corroborates the statement made by respondent as to the acts and utterances of the respective parties, to wit, herself, the appellant, and the respondent in the presence of each other on the 19th day of October.

As we have already stated, it requires no citation of authorities and no critical analysis to further the conclusion that the letters in question were inadmissible to prove adulterous acts. Their incompetency was a matter manifest and apparent on their very face. With reference to the admission of the letters the record discloses the purpose for which they were admitted, and the attitude of the court in admitting them. The court in admitting them in evidence expressly stated the purpose for which the letters were admitted, 1. e., "contradicting any inference that might be drawn that they were living together as husband and wife, cohabiting together," subsequent to October 19th.

It has been held that, even in cases where a trial was conducted before a jury, the admission of incompetent evidence contained in an instrument, part of the contents of which was competent, would not constitute reversible error where the court gave instruction to the jury directing them to disregard the incompetent portion, or where the court specifically instructed the jury as to the purpose for which the instrument or its contents should be considered by them. Billings v. Albright, 66 App. Div. 239, 73 N. Y. Supp. 22; Ball v. Marquis, 122 Iowa, 665, 98 N. W. 496.

Our reference to this rule applicable to the admission of evidence of this character in the trial of cases before a jury is made without conferring upon it either our approval or disapproval. The established and recognized rules applicable to the admissibility of evidence should, in our judgment, be closely and carefully adhered to, with a view that nothing may inject itself into the record excepting that which is properly admissible under the applicable rules. Strict adherence to these rules forms the surest avenue by which litigation may be speedily determined and by which litigants may be saved interminable annoyance and expense attendant upon reversals by courts of last resorts, and hardshipful retrials.

In a case such as this where the trial is conducted before a court sitting without a jury, it may, in our judgment, be properly presumed, unless the contrary appears, that the court in arriving at its conclusion considered only such evidence as was legally admissible. Gernert v. Griffin, 28 Okl. 733, 116 Pac. 439; Lee v. Railway Co., 67 Kan. 402, 73 Pac. 110,

The letters were admitted solely for the purpose of contradicting the inference that respondent was cohabiting with his wife subsequent to the date on which knowledge of her adultery was brought home to him. There were certain statements in the letters which might be considered as tending to disprove such inference. They were properly admissible for this purpose, and under the rule already cited, it must be presumed that the court regarded the letters for no other purpose. Willis v. Bernerd, 131 Eng. Rep. 439; Ball v. Marquis, 122 Iowa, 665, 98 N. W. 496; Billings v. Albright, 66 App. Div. 239, 73 N. Y. Supp. 22.

[2] We think a rule sufficiently established and worthy of adherence is applicable here, i. e., where incompetent evidence is admitted in a trial of a cause by a court sitting without a jury, a reversal is only warranted when it is apparent from the record that the competent evidence was insufficient to support the judgment, or when it is affirmatively shown that the improper evidence affected the result. Miller v. Foster, 28 Okl. 731, 116 Pac. 438; Gernert v. Griffin, supra.

It cannot be assumed that the incompetent evidence which was inseparable from the competent statements contained in the letters, affected the conclusion reached by the trial judge when his decision in admitting the evidence excluded the incompetent portion from consideration. It must be assumed, in the absence of a showing to the contrary, that the trial judge adhered to his position as stated when he admitted the letters in evidence. The rule that injury will be presumed where error is shown unless the contrary appears affirmatively cannot apply where, in a case like this, the incompetent matter, inseparably attached to competent matter, was expressly referred to as not being admissible, or where the admissibility of the instrument is limited to a specified purpose for which it is competent. If the testimony of the wife of the respondent given before the trial court, with the opportunity afforded the court for careful scrutiny and observation of the witness, carried conviction to the mind of the court as to the truth of her assertions, it was sufficient in itself to support the finding.

We have heretofore held that the admission of incompetent evidence in the trial of a cause by the court without a jury should not of itself be sufficient to warrant a reversal of the judgment, if an affirmance of the judgment is otherwise sustained by a preponderance of competent evidence. Fleeson v. Savage Silver Mng. Co., 3 Nev. 157; Robinson v. Imperial Silver M. Co., 5 Nev. 44. Other courts have held to the same effect. Smith v. Scott, 51 Wash. 330, 98 Pac. 763; Alexander v. Wellington, 44 Colo. 388, 98 Pac. 631.

[3] The letters introduced by respondent,

lish a fact against his interest, viz., that the acts of appellant caused only a temporary separation of respondent from his wife, hence lessening the injury, and this, no doubt, was the basis for the court's conclusion in fixing the damages. Of this the appellant cannot complain, inasmuch as the admission of the to his benefit. Lamance letters inured

V. Byrnes, 17 Nev. 197, 30 Pac. 700.

[4] The wife of respondent was a competent witness to testify in his behalf. Section 482 of the Civil Practice Act (section 5424, Rev. Laws) provides:

"A husband cannot be examined as a witness for or against his wife without her consent, nor a wife for or against her husband without his consent; nor can either, during the marriage or afterwards, be, without the consent of the other, examined as to any communication made by one to the other during marriage. But this exception shall not apply to a civil action or proceeding by one against the other, nor to a criminal action or proceeding for a crime committed by one against the other."

As we have already stated, the record discloses consent given by the respondent and by his wife, respectively, in open court that the other might testify as a witness about any and all facts and circumstances and mutual confidences which existed between them having a bearing on the case. The error contended for in this respect not being seriously urged by appellant, we deem it sufficient to say that the action of the trial court in permitting the witness Annie Rehling, wife of respondent, to testify was not an error under the statute cited. Scheffler v. Robinson, 159 Mo. App. 527, 141 S. W. 485; Smith v. Meyers, 52 Neb. 70, 71 N. W. 1006; Wigmore on Evidence, § 2241.

[5] As we view the evidence as disclosed by the record in this case, it was sufficient to support the judgment, if in the opinion of the trial court the testimony of the wife of respondent was worthy of belief, and we find nothing in the record to lead us to assume the contrary. The plea of appellant asserting a conspiracy on the part of respondent and his wife, and the carrying out of the conspiracy on the 19th of October by respondent and his wife as co-conspirators, is, in our judgment, inconsistent with the acts