1877, c. 84) provides for the removal of county In all cases of doubt every presumption and intendment will be made in favor of the constitutionality of an act of the Legislature. [Ed. Note.-For other cases, see Constitution al Law, Cent. Dig. § 46; Dec. Dig. § 48;* Statutes, Cent. Dig. § 56.] 3. COUNTIES (§ 24*) — LOCATION OF COUNTY SEAT-CONTROL BY THE STATE. The Legislature has complete control of the entire subject of counties and county seats, ex cept where prohibited by constitutional provi sions. [Ed. Note. For other cases, see Counties, Cent. Dig. § 24; Dec. Dig. § 24.*] 4. STATUTES (§ 76*) - GENERAL AND SPECIAL LAW-LOCATING COUNTY SEAT. In locating a county seat, it will depend upon the facts and circumstances of each case whether a general law is applicable. [Ed. Note.-For other cases, see Statutes, Cent. Dig. §8 772-782; Dec. Dig. § 76.*] 5. STATUTES (§ 76*)—SPECIAL ACTS-PRESUMP TION. If a special act be passed for a particular case, the presumption of the applicability of the general law is overcome by the presumption in favor of the special act that the general act was not applicable in that case. [Ed. Note. For other cases, see Statutes, Cent. Dig. §§ 772-782; Dec. Dig. § 76.*] 6. CONSTITUTIONAL LAW (§ 77*)—ENCROACHMENT ON LEGISLATURE GENERAL OR SPECIAL LAWS. The Legislature is the judge in the first instance as to whether a law on any subject not enumerated in the Constitution can be made general and applicable to the whole state, and the judgment of the Legislature as to whether a general law is applicable, or special or local laws are required regarding subjects not enu'merated, is presumed to be correct, but is subject to review by the court. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. § 130; Dec. Dig. § 77.*] Appeal from District Court, Lyon County, L. N. French, Judge. Action by M. Quilici against I. A. Strosnider and others, as the Board of County Commissioners of Lyon County. From a judgment dissolving a preliminary restraining order and denying an injunction, plaintiff appeals. Affirmed. about to remove the county seat from Dayton to Yerington, under the provisions of an act passed at the last session of the Legislature, which provides that after the 1st day of May, 1911, the county seat of Lyon county shall be located at the city of Yerington, that the county officers shall remove and keep their offices at the city of Yerington, and that the county commissioners shall provide for the removal from Dayton to Yerington of the archives and other movable any immovable property belonging to Lyon property belonging to the county, and sell county in the town of Dayton. The complaint states that the plaintiff is a resident, taxpayer, and owner of property in the town of Dayton; that the removal of the archives of the county, if not restrained by order of the court, will greatly depreciate the value of property there and greatly increase the tax rate in Lyon county; that, unless reproposed intention and remove the records strained, the respondents will carry out the and archives from the town of Dayton to the city of Yerington. It is alleged that the act of the Legislature mentioned is void; that it is in conflict with section 20 of article 4 of the Constitution of the state of Nevada, which provides that the Legislature shall not pass local or special laws except in certain enumerated cases, and that it is in conflict with section 21 of article 4 of the Constitution, which provides that "in all cases enumerated in the preceding section, and in all other cases where a general law can be made applicable, all laws shall be general and of uniform application throughout the state." After trial, the district court found that the defendants, constituting the board of county commissioners, intend to remove the archives and personal property of the county from Dayton to the city of Yerington and to sell the real property located at Dayton, as directed by the act of the Legislature, and that the defendants were entitled to judgment denying the injunction prayed for and dissolving the preliminary restraining order granted. It is urged that the special act providing for the removal of the county seat of Lyon county is unconstitutional and void because a general law can be made to apply, and because the general act of 1877 (Laws 1877, c. 84) providing for the removal of county seats by the majority of the voters at an election called on the petition of three-fifths of the taxpayers who are electors is applicable to that county. Since the passage of this general statute, and during the time it has been Mark Walser and Geo. L. Sanford, for ap- in force, a number of county seats have pellant. John Lothrop, Dist. Atty., and Hus-been removed under special acts of the Legiskey & Springer, for respondents. lature, and it has been the rule to so remove them for 40 years. The earlier of these special acts, changing the county seat of Washoe county from Washoe to Reno, and the county seat of Humboldt county from Unionville to Winnemucca, were tested, and PER CURIAM. [1] Appellant here, as plaintiff in the district court, filed a complaint alleging that the defendants, as the county commissioners of Lyon county, were the removal of them sustained by this court. | laws in the cases where a general law would Later special acts removing the county seat of White Pine county from Hamilton to Ely, of Churchill county from Stillwater to Fallon, of Nye county from Belmont to Tonopah, and of Esmeralda county from Hawthorne to Goldfield, do not appear to have been resisted in the courts. The act now sought to be overthrown, relating to Lyon county, and all these acts, with the exception of changes in dates and places, are substantially copies of each other, and of the ones removing the county seats in Washoe and Humboldt counties, which were sustained by this court. [2] It was held in State v. Irwin, 5 Nev. 111, that the special act of 1869 (St. 1869, c. 60), creating White Pine county was not unconstitutional, and, as in many decisions by this and other courts, that in all cases of doubt every presumption and intendment will be made in favor of the constitutionality of the act of the Legislature. It was said in the opinion: "Hardly any case could be found or imagined where a general law could not be framed which would, in default of one special, answer some part of the purpose intended to be accomplished by legislation. But would such a general law be applicable is always the question. A law, to be applicable in the sense in which the words are evidently used, and their only proper sense in such connection, must answer the just purposes of legislation; that is, best subserve the interests of the people of the state, or such class or portion as the particular legislation is intended to affect. A general law could undoubtedly be passed regulating the organization of new counties, but it would be exceedingly difficult, if not impossible, to make such law applicable." [3] In the case sustaining the special act removing the county seat of Washoe county from Washoe to Reno (Hess v. Pegg, 7 Nev. 23), it was held that the Legislature had no authority to enact a local or special law when a general one can be made applicable; that the decision as to whether a general law may be made applicable, although primarily in the Legislature and presumptively correct, is subject to review by the courts; that where, notwithstanding the existence of a general statute in relation to the removal of county seats, the Legislature passed a special act for the removal of a particular county seat, the presumption was that the general act was not and could not be made applicable; and that the Legislature has complete control of the entire subject of counties and county seats except where prohibited by constitutional provisions. [4, 5] In Evans v. Job, 8 Nev. 322, it was held that the special act removing the county seat of Humboldt county from Unionville to Winnemucca was not in violation of sections 20 and 21 of article 4 of the Constitution, that these sections were intended to prohibit the Legislature from passing special be applicable, but that to be applicable the general law must be adapted to the wants of the people, suited to the just purposes of legislation or to effect the object sought to be accomplished. It was further held that these sections of the Constitution recognize the fact that cases would arise in ordinary course of legislation requiring special laws to be passed where a general law might be applicable to the general subject but not applicable to the particular case; that where only a portion of the people were affected, as in locating a county seat, it will depend upon the facts and circumstances of each particular case whether such a law is applicable. It was also held that, where a special act has been passed in ref erence to a matter affecting only a portion of the people, it would be presumed to be valid unless facts were presented showing beyond any reasonable doubt that a general law is applicable; that the mere fact that the general law has been passed providing for the removal of the county seat does not prove that it is applicable to a particular case, and if a special act be passed for a particular case, the presumption of the applicability of the general law is overcome by the presumption in favor of the special act that the general act was not applicable in that case. It was said that it is an almost uniform rule in construing statutes and Constitutions to adhere to former decisions. In State ex rel. Rosenstock v. Swift, 11 Nev. 129, the special act of 1875 (Laws 1875, p. 87), providing for the incorporation of Carson City, was held constitutional, and the court said: "The fifth objection is that the law is void because it is a special law in a case where a general law exists and can be made applicable'; and it is therefore contended that the act was passed in violation of that clause of the twenty-first section of article 4 of the Constitution, which declares: 'Where a general law can be made applicable, all laws shall be general and of uniform application throughout the state.' The argument in support of this proposition is that, inasmuch as a general law existed at the time of the passage of the act in question (St. 1873, p. 66) providing for the government of cities and towns, and the town of Carson having been organized under its provisions, it is, therefore, practically demonstrated that a general law can be made applicable. The principle involved in this proposition cannot be distinguished from that decided in Hess v. Pegg, 7 Nev. 23, and also in that of Evans v. Job, 8 Nev. 323. The same argument was urged against the validity of the acts respectively involved in those cases, and the same authorities cited in support thereof as are presented here. There was an elaborate opinion in each case in which all the authorities cited by counsel for the relator, as well as others bearing upon the subject, were fully reviewed, the result of which is an exposition of this pro- | removal was made an issue in the election vision of the Constitution adverse to the position of relator, and the principle thus decided must now be regarded as the settled law of this state." of representatives from that county to the Legislature, and that the candidates favoring such, removal were elected, and it may be presumed that the Legislature was aware of these conditions. The Legislature has since passed a general law for the incorporation of cities which has [6] The Supreme Court of Indiana, in Genbeen sustained as constitutional. St. 1907, p. tile v. State, 29 Ind. 412, Wiley v. Bluffton. 241; State v. District Court, 30 Nev. 225, 94 111 Ind. 152, 12 N. E. 165, Bell v. Maish, 137 Pac. 70. In addition to cities established un- Ind. 230, 36 N. E. 358, 1118, and State v. der this general law, we have a number of Kolsem, 130 Ind. 440, 29 N. E. 595, 14 L. special acts passed previously and subse- | R. A. 566, overruled the case of Thomas v. quently for the creation of cities. In State Board, 5 Ind. 4, upon which reliance has v. Lytton, 31 Nev. 67, 99 Pac. 855, citing and following earlier decisions in this state and the case of Lincoln County v. Luning, 133 U. S. 532, 10 Sup. Ct. 363, 33 L. Ed. 766, we held that a special act providing for funds for the erection of a courthouse was valid, and that the constitutionality of such acts must be considered as settled. It was admitted upon the trial that numerous witnesses presented by the plaintiff would testify that they knew of no condition or emergency which would have prevented the calling of an election under the general law for the removal of county seats or that necessitated the special act of the Legislature. It may be admitted for the purposes of the case that the people desiring the removal could have proceeded under the general act, and that the testimony and conclusions of these witnesses were entirely true. Under the constitutional prohibition that no special act shall be passed by the Legislature where a general law may be made applicable, we do not consider that the inhibition applies to every case where the county seat might be removed under the general law regardless of any delay, inconvenience, or hardship it might occasion, but that the special law is proper and valid when, as said in the Irwin Case, it will better answer the just purposes of legislation and best subserve the interests of the people of the state, or the portion for whose benefit the legislation is intended. There may have been special reasons existing which are presumed to have justified the Legislature in passing the special act, and which are sufficient to make it effective and constitutional as a law desirable and necessary to prevent great inconvenience and undue hardship upon the people of Lyon county or a majority of them. Long prior to the last general election the courthouse at Dayton was consumed by fire, and residents of Yerington and some other parts of the county away from Dayton sought to have the county seat removed to Yerington under the general act providing for the removal of county seats. More than a majority of the taxpayers of the county entitled to the right of suffrage filed with the board of county commissioners a petition for such removal, which was resisted by the residents of Dayton, and proceedings were brought to been placed, and went further than our court has done, and held that the Legislature is the exclusive judge as to whether a law on any subject not enumerated in the Constitution can be made general and applicable to the whole state, and that the judgment of the Legislature as to whether a general law is applicable, or special or local laws are required regarding subjects not so enumerated, is conclusive. The negative testimony of the witnesses, instead of stating facts, carried with it their conclusion that they knew nothing to prevent the general law from applying, without giving the facts on which they may have based their conclusion, or the facts which may have caused the Legislature to conclude that the special law was necessary. It is not shown that they had in mind the distinctions which would make the general law applicable or inapplicable as stated in the State v. Irwin Case. Under the Indiana rule the Legislature could determine the facts, and its judgment regarding them would be conclusive; and under the rule stated in Hess v. Pegg, 7 Nev. 23, whether the general law is applicable was for the Legislature to determine in the first instance, and its conclusion was presumed to be correct, but subject to review by the court. The testimony of witnesses, if admissible at all, would be confined to the facts, and their conclusion could not be taken against that of the Legislature and the courts. It must be conceded that great financial loss will result to the property owners of Dayton by the removal of the county seat, and that it is natural for them to make an effort to prevent such removal for the protection of their own best interests. On the other hand, if the majority of the taxpayers and the voters of the county live in localities where they will be under greater inconvenience and expense by having the county seat at Dayton than at Yerington, the greater good to the greater number may result from the removal of the county seat, although this may not be a sufficient reason for holding the law valid. The special act of the Legislature may be better justified and sustained on the ground that the emergency and conditions were such as to make prompt action by special act of the Legislature nec. essary in order to prevent undue hardship ty, which under existing conditions would | 3. ADULTERY (§ 1*)-ELEMENTS-MARRIAGE OF have been caused by delay in proceeding unPARTIES. der the general act. Since the burning of the courthouse a long time has been consumed by resisting removal of the county seat under the general law and by waiting for the Legislature to act at the instance of the members of the Legislature from the county, which has been and is without a proper courthouse or accommodations for conducting county affairs. If the emergency did not justify this special act, much more delay might be expected if further proceedings were brought for the removal under the general act and anticipated resistance made to removal. In the meantime, the county would continue to be without a courthouse or proper accommodations for enforcing criminal laws and conducting litigation and county business; or if the county commissioners proceeded promptly to rebuild or provide a courthouse at Dayton, and by completion an election was reached under the general act and the county seat removed to Yerington, great and unnecessary expense might be entailed upon the taxpayers. As great an emergency may have existed for the passage of this special act as for the one moving the county seat of White Pine county to Ely after the destruction of the courthouse at Hamilton. Considering the conditions which may have prompted this special act of the Legislature, and the fact that it and other special acts have been passed by the Legislature after decisions of this court sustaining the removal of county seats under similar special acts, it is apparent that even stronger reasons now exist for sustaining this legislation, and to hold it invalid might result in the raising of grave questions concerning the removal of other county seats and cause uncertainty regarding records and judgments involving large interests. The judgment of the district court is af Under Comp. Laws 1907, § 4210, punishing adultery, and providing that, when the act is committed between a married woman and an unmarried man, both parties shall be deemed guilty of adultery, and that, when the act is committed between a married man and an unmarried woman, the man shall be deemed guilty of adultery, proof that accused was married to a woman other than prosecutrix, and that he had sexual intercourse with the latter, was sufficient to show him guilty of adultery, whether prosecutrix was married or not. [Ed. Note. For Cent. Dig. §§ 2, 3; other cases, see Adultery, Dec. Dig. § 1.*] 4. CRIMINAL LAW (§ 406*)-EVIDENCE-AD MISSIONS. In a prosecution for adultery, an affidavit signed by prosecutrix to the effect that she was the mother of a child, that accused was its father, that she was unmarried, and had had sexual intercourse with accused at divers times, and which was shown to accused when he was arrested, whereupon he stated that he had had sexual intercourse with prosecutrix, but did not idence, not as primary evidence of the facts believe the child was his, was admissible in evtherein declared, but to show his admissions respecting the statements contained in it. [Ed. Note. For other cases, see Criminal Law, Dec. Dig. § 406.*] 5. ADULTERY (§ 14*)-CORPUS DELICTI-SUFFICIENCY OF EVIDENCE. delicti was sufficiently shown by proof that In a prosecution for adultery, the corpus prosecutrix, an unmarried woman, gave birth to a child, and accused's admission that he had sexual intercourse with her was sufficient to connect him with the offense. [Ed. Note.-For other cases, see Adultery, Dec. Dig. § 14.*] 6. CRIMINAL LAW (§ 1169*)—APPEAL-REVIEW -HARMLESS ERROR. For other cases see same topie and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes State v. Moore, 105 Pac. 293. 10. WITNESSES (§ 68*)-COMPETENCY-COUNTY | of them if committed within the statutory period ATTORNEY. of limitations. 2 Under Comp. Laws 1907, § 3412, providing that all persons without exception, other than is specified in the next two sections, who, having organs of sense, can perceive, and, perceiving, can make known their perceptions to others, and section 3413 specifying as persons who cannot be witnesses those of unsound mind, children under 10 years of age, and parties to transactions with deceased persons, the county attorney, who was of counsel in behalf of the state in a criminal case and participated in the trial thereof after his term of office expired, and to whom accused made certain admissions, was a competent witness. [Ed. Note. For other cases, see Witnesses, Cent. Dig. § 183; Dec. Dig. § 68.*] 11. CRIMINAL LAW (§ 409*) — ADMISSIONS VOLUNTARY CHARACTER. Evidence held to show that certain admissions by accused were voluntarily made. [Ed. Note. For other cases, see Criminal Law, Dec. Dig. § 409.*] 12. CRIMINAL LAW (§ 396*)-EVIDENCE-PART OF CONVERSATION. Under the rule that, where a part of a conversation or transaction relative to a subject under judicial investigation is admissible, all that forms a part of such conversation or transaction together with the circumstances surrounding the persons engaged in it are competent to go to the jury to enable them to assign the proper and just effect of admissions made in the course of the conversation or transaction, where, in a prosecution for adultery, it appeared | that, after accused had admitted to the county attorney that he had had sexual intercourse with prosecutrix, he manifested a willingness to plead guilty to fornication and pay a fine, and, on being informed that the judge and district attorney had to be parties to such an arrangement, accepted the proffered assistance of the county attorney to interview the judge and ascertain his views, what the county attorney told accused as the result of the interview was competent as a part of the transaction. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 862; Dec. Dig. § 396.*] On Application for Rehearing. 13. INDICTMENT AND INFORMATION ($ 176*)ISSUES, PROOF, AND VARIANCE-TIME OF OFFENSE. Where time is not an essential ingredient of the offense, the state need not prove the offense and the transaction out of which it arose at or about the particular time stated in the information, but may prove them at any other and prior time within the statutory period of limitations. [Ed. Note.-For other cases, see Indictment and Information, Cent. Dig. § 548; Dec. Dig. $ 176.*] 14. CRIMINAL Law (§ 772*)—TRIAL-ELECTION BETWEEN OFFENSES-INSTRUCTIONS. In a prosecution for adultery, where the state's evidence was directed only to the single transaction alleged in the information, a charge, which, after stating that the offense was alleged to have been committed on or about July 18, 1906, etc., instructed that "the exact time alleged in the information as to the commission of the crime charged need not be proved, for it is sufficiently established under the law if you believe that the unlawful act was committed within four years next prior to the filing of the information," etc., was not open to the objection that the jury could have assumed that there was evidence in the case of several or different offenses similar to that charged, and that they were at liberty to convict accused of any one [Ed. Note. For other cases, see Criminal Law, Dec. Dig. § 772.*] McCarty, J., dissenting. Appeal from District Court, Sanpete County; A. H. Christensen, Judge. Webster Greene was convicted of adultery, and appeals. Affirmed. J. W. Cherry and E. A. Wedgwood, for appellant. A. R. Barnes, Atty. Gen., for the State. STRAUP, C. J. The defendant was convicted of the crime of adultery. It was alleged in the information that he, a married man, committed the crime with Madge Morey, an unmarried woman, in Sanpete county, on July 18, 1906. Evidence was introduced by the state tending to show that the defendant in 1906, and for more than 10 years prior thereto, resided at Mt. Pleasant, Sanpete county, and that Madge Morey in July, 1906, and for about a year prior thereto, also resided at that place, and that she during that time lived with the defendant and his family. Considerable evidence was had tending to show that the defendant was reputed to be a married man; that his wife's name was Grace Greene, and that they had lived together at Mt. Pleasant as husband and wife for more than 10 years; and that Madge Morey, about 20 years of age, was reputed to be an unmarried woman. An affidavit made by the defendant in October, 1903, in a certain cause, was also introduced in evidence in which the defendant deposed that he "is and has been for ten years last past a married man, and is required to and does support Grace Greene, his wife, who resides with him at Mt. Pleasant, Sanpete county, Utah." A warranty deed executed by the defendant and Grace D. Greene in April, 1906, was also introduced in evidence, in which it was recited that "Webster Greene and Grace D. Greene, his wife, grantors, of Mt. Pleasant, Sanpete county," conVeyed and warranted certain real estate therein described. In the acknowledgment of that instrument it was also recited that "Webster Greene and Grace D. Greene, husband and wife, the signers of the above instrument," duly acknowledged its execution. About the 31st day of December, 1906, Madge Morey left Mt. Pleasant and went to the Florence Crittenden Home, in Los Angeles, Cal., "a home for betrayed girls, a maternity home," and remained there until the 15th day of August, 1907. There she gave birth to a child on the 18th day of April, 1907. While she was at the home the defendant, from Mt. Pleasant, wrote several letters to her, in one of which he sent her money and cautioned her not to "mention receiving any money" and requested her to put a mark on one of the corners of the letter to be writ For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes |