nevada reports 1909 (31 nev.).pdf

7/28/2019 Nevada Reports 1909 (31 Nev.).pdf

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31 Nev. 1, 1 (1909)

RULES OF THE BOARD OF PARDONS.

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1. The regular meetings of the board shall be held on the Wednesday after the first

Monday in January, and on the second Monday of July of each year.As amended, January,

1906.

2. Special meetings may be called by the governor at any time when the exigencies of any

case demand it, notice thereof being given to each member of the board.

3. No application for the remission of a fine or forfeiture, or for a commutation ofsentence, or pardon, shall be considered by the board unless presented in the form and manner

required by the law of the state approved February 20, 1875.

4. In every case where the applicant has been confined in the state prison, he or she must

procure a written certificate of his or her conduct during such confinement, from the warden

of said prison, and file the same with the secretary of this board, on or before the day of

hearing.

5. All oral testimony offered upon the hearing of any case must be presented under oath,

unless otherwise directed by a majority of the board.

6. Action by the board upon every case shall be in private, unless otherwise ordered by the

consent of all the members present.

7. After a case has once been acted upon, and the relief asked for has been refused, it shall

not, within twelve months thereafter, be again taken up or considered upon any of the grounds

specified in the application under consideration, except by the consent of a majority of the

members of the board; nor in any case except upon new and regular notice as required by law

in case of original application.

8. In voting upon any application the roll of members shall be called by the secretary of

the board in the following order:

FirstThe Attorney-General.

SecondThe Junior Associate Justice of the Supreme Court.

ThirdThe Senior Associate Justice.

FourthThe Chief Justice.FifthThe Governor.

31 Nev. 1, 2 (1909) Rules of Board of Pardons

Each member, when his name is called, shall declare his vote for or against the


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remission of the fine or forfeiture, commutation of sentence, pardon, or restoration to

citizenship.

9. No document relating to a pending application for pardon or commutation of sentence,

or to a prior application which has been denied, shall be withdrawn from the custody of the

clerk after filing, unless by consent of the board.

10. Application for pardon or commutation of sentence must be filed with the clerk atleast two days before the regular meeting of the board, at which the application is to be

considered.

11. All papers pertaining to applications for pardon, or for restoration to citizenship, must

be properly indorsed before presentation for filing; and the name of the attorney for the

applicant must appear in such indorsement on the petition and notices to the district judge and

district attorney. The indorsement on each paper must begin at the top with Board of

Pardons, and include the name of the document.

12. Attorneys shall first present their evidence through witnesses, affidavits, the record or

documents, and then argue their cases concisely and not exceeding one-half hour for each

counsel appearing, unless additional time be granted by the board, and in the event that an

attorney digresses from the evidence, or states facts not supported thereby, or reiterates in hisargument, he shall be called to order. Papers shall be filed separately, or attached before they

are read in evidence, and shall not be withdrawn without the order of the board or some

member thereof.

13. Upon behalf of an applicant for pardon who has been convicted of felony, evidence of

facts relating to the commission of the crime other than that contained in the record, may be

presented only by witnesses, who know the circumstances, appearing and testifying under

oath, or by depositions or affidavits, copies of which shall have been served upon the district

judge and district attorney of the county in which the indictment was found, at least thirty

days before the hearing, unless, for good cause shown, this time be shortened by the board.

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31 Nev. 3, 3 (1909) State Library Regulations

NEVADA STATE LIBRARY.

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Sections of the Law Relating to Use of Books.

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From Compiled Laws of 1900.


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Sec. 1518. The state librarian shall keep a register of all books, magazines, papers,

pamphlets, maps, charts, and other property added to the library, and of the cost thereof, and

shall stamp the same with the library seal. He shall keep a register of all books taken from the

library, when taken out, by whom, and when returned. He shall not permit any person or

persons, except such as are authorized by law, to take from the library any book, magazine,

paper, or other property belonging thereto.Sec. 1522. Upon assuming the duties of his office the secretary of state, as ex officio state

librarian, shall execute a receipt and deliver the same to the justices of the supreme court for

all books and other property in the state library.

Sec. 1523. All books, maps, and charts, now belonging to, or which may hereafter come

into possession of, this state, by purchase or otherwise; all books, maps, charts, pamphlets,

and other documents, which, by any state officer, may be received in their [his] official

capacity from the general government, or in exchange from other states and territories, or

received from foreign nations, or donated to the state by any person or corporation, shall be

placed in the state library, and shall be carefully preserved by the librarian.

Sec. 1525. Books may be taken from the state library by the members of the legislature

during its session, and at any time by the governor and other officers of the executivedepartment of this state who are required to keep their offices at the seat of government, the

justices of the supreme court, and attorney-general;provided, that no person shall be

permitted to have more than two volumes of miscellaneous works from said library at the

same time.

31 Nev. 3, 4 (1909) State Library Regulations

Sec. 1526. The librarian shall cause to be kept a register of all the books issued and

returned at the time they shall be so issued and returned, and none of the books, except the

laws, journals, and reports of this state, which may be taken from the library by members of

the legislature, during the session, and law books taken by the judges of the supreme court,

shall be retained more than two weeks; and all books taken by the members of the legislature

shall be returned at the close of the session.

Sec. 1527. If any person materially injure, or fail to return, any books taken from the

library within the time prescribed in the foregoing section, he shall forfeit and pay to the

librarian, for the benefit of the library, three times the value thereof, or of the set to which it

belongs.

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31 Nev. 5, 5 (1909) Rules of State Library


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RULES OF STATE LIBRARY

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The number of users of the library is so small under the law that it has not heretofore beenconsidered necessary by those in charge to publish any rules in addition to those included in

the statute.

The office hours are from 10 to 12 o'clock in the morning, and from 1 to 4 in the

afternoon, on judicial days.

Those using books, except members of the supreme court, are requested notto replace

them on the shelves.

Books are not allowed to be taken beyond the limits of the capital city.

Books of reference, including law and miscellaneous, art works and unbound magazines,

are not to be taken from the library.

The use of the library is extended to attorneys practicing before the supreme and districtcourts, when in the capital city.

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31 Nev. 7, 7 (1909) Rules of Supreme Court

RULES

OF THE

Supreme Court of the State of Nevada

Adopted September 1, 1879; as amended to July 7, 1908.

___________

RULE I.

1. Applicants for license to practice as attorneys and counselors will be examined in open

court on the first day of the term.

Examination for Attorneys-at-Law.

2. The supreme court, upon application of the district judge of any judicial district, will

appoint a committee to examine persons applying for admission to practice as attorneys and

counselors-at-law. Such committee will consist of the district judge and at least two attorneys

resident of the district.

The examination by the committee so appointed shall be conducted and certified according


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to the following rules:

Examination by Committee.

The applicant shall be examined by the district judge and at least two others of the

committee, and the questions and answers must be reduced to writing.

No intimation of the questions to be asked must be given to the applicant by any memberof the committee previous to the examination.

Examination to Embrace.

The examination shall embrace the following subjects:

1 The history of this state and of the United States;

2 The constitutional relations of the state and federal governments;

3 The jurisdiction of the various courts of this state and of the United States;

4 The various sources of our municipal law;

5 The general principles of the common law relating to property and personal rights and

obligations; 7KHJHQHUDOJURXQGVRIHTXLW\MXULVGLFWLRQDQGSULQFLSOHVRIHTXLW\MXULVSUXGHQFH


6 The general grounds of equity jurisdiction and principles of equity jurisprudence;

7 Rules and principles of pleadings and evidence;

8 Practice under the civil and criminal codes of Nevada;

9 Remedies in hypothetical cases;

10 The course and duration of the applicant's studies.

3. The examiners will not be expected to go very much at large into the details of these

subjects, but only sufficiently so fairly to test the extent of the applicant's knowledge and the

accuracy of his understanding of those subjects and books which he has studied.

Examination by Committee.

4. When the examination is completed and reduced to writing, the examiners will return it

to this court, accompanied by their certificate showing whether or not the applicant is of good

moral character and has attained his majority, and is a bona fide resident of this state. Such

certificate shall also contain the facts that the applicant was examined in the presence of thecommittee; that he had no knowledge or intimation of the nature of any of the questions to be

propounded to him before the same were asked by the committee, and that the answers to

each and all the questions were taken down as given by the applicant without reference to any

books or other outside aid.

Fee To be Deposited Before Examination.


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5. The fee of thirty-five dollars for license must in all cases be deposited with the clerk of

the court before the application is made, to be returned to the applicant in case of rejection.

RULE II.

Filing Transcript.In all cases where an appeal has been perfected, and the statement settled (if there be one)

thirty days before the commencement of a term, the transcript of the record shall be filed on

or before the first day of such term.

RULE III.

Appeal May Be DismissedCan Be Restored.

1. If the transcript of the record be not filed within the time prescribed by Rule II, the

appeal may be dismissed on motion during the first week of the term, without notice. A cause

so dismissed may be restored during the same term, XSRQJRRGFDXVHVKRZQRQQRWLFHWR

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upon good cause shown, on notice to the opposite party; and, unless so restored, the dismissal

shall be final and a bar to any other appeal from the same order or judgment.

How Restored.

2. On such motion there shall be presented the certificate of the clerk below, under the

seal of the court, certifying the amount or character of the judgment; the date of its rendition;

the fact and date of the filing of the notice of appeal, together with the fact and date of service

thereof on the adverse party, and the character of the evidence by which said service appears;

the face and date of the filing of the undertaking on appeal; and the same is in due form; the

fact and time of the settlement of the statement, if there by one; and also that the appellant has

received a duly certified transcript, or that he has not requested the clerk to certify to a correct

transcript of the record; or, if he has made such request, that he has not paid the fees therefor,

if the same have been demanded.

RULE IV.

Printed Transcripts.

1. All transcripts of record in civil cases, when printed, shall be printed on unruled white

paper, ten inches long by seven inches wide, with a margin on the other edge of not less than

one inch. The printed page shall not be less than seven inches long and three and one-half

inches wide. The folios, embracing ten inches each, shall be numbered from the


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commencement to the end, and the numbering of the folios shall be printed between lines.

Nothing smaller than minion type leaded shall be used in printing.

Transcripts in Criminal Cases.

2. Transcripts in criminal cases may be printed in like manner as prescribed for civil

cases; or, if not printed, shall be written on one side only of transcript paper, sixteen incheslong by ten and one-half inches width, with a margin of not less than one and one-half inches

wide, fastened or bound together on the left sides of the pages by ribbon or tape, so that the

same may be secured, and every part conveniently read. The transcript, if written, shall be in a

fair, legible hand, and each paper or order shall be separately inserted.

To Be Indexed.

3. The pleadings, proceedings, and statement shall be FKURQRORJLFDOO\DUUDQJHGLQWKHWUDQVFULSWDQGHDFKWUDQVFULSWVKDOOEHSUHIDFHGZLWKDQDOSKDEHWLFDOLQGH[VSHFLI\LQJWKHIROLRRIHDFKVHSDUDWHSDSHURUGHURUSURFHHGLQJDQGRIWKHWHVWLPRQ\RIHDFKZLWQHVVDQGWKHWUDQVFULSWVKDOOKDYHDWOHDVWRQHEODQNIO\VKHHWFRYHU


chronologically arranged in the transcript, and each transcript shall be prefaced with an

alphabetical index, specifying the folio of each separate paper, order, or proceeding, and of

the testimony of each witness; and the transcript shall have at least one blank fly-sheet cover.

Cannot Be Filed.

4. No record which fail to conform to these rules shall be received or filed by the clerk of

the court.

RULE V.

Printing Transcripts.

The written transcript in civil causes, together with sufficient funds to pay for the printing

of the same, may be transmitted to the clerk of this court. The clerk, upon the receipt thereof,

shall file the same and cause the transcript to be printed, and to a printed copy shall annex his

certificate that the said printed transcript is a full and correct copy of the transcript furnished

to him by the party; and said certificate shall beprima facie evidence that the same is correct.The said printed copy so certified shall also be filed, and constitute the record of the cause in

this court, subject to be corrected by reference to the written transcript on file.

RULE VI.

Cost of Typewriting or Printing Transcripts.

1. The expense of printing or typewriting transcripts, affidavits, briefs, or other papers on


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appeal in civil causes and pleadings, affidavits, briefs, or other papers constituting the record

in original proceedings upon which the cause is heard in this court, required by these rules to

be printed or typewritten, shall be allowed as costs, and taxed in bills of costs in the usual

mode;provided, that no greater amount than twenty-five cents per folio of one hundred words

shall be taxed as costs for printing, and no greater amount than twelve and one-half cents per

folio for one copy only shall be taxed as costs for typewriting. All other costs to be taxed bythe clerk in accordance with the fee bill.

To Serve Cost Bill, When.

2. Either party desiring to recover as costs his expenses for printing or typewriting in any

cause in this court, shall, before said cause is submitted, file with the clerk and serve upon the

opposite party a verified cost bill, setting forth or VWDWLQJWKHDFWXDOFRVWRIVXFKSULQWLQJRUW\SHZULWLQJDQGQRJUHDWHUDPRXQWWKDQVXFKDFWXDOFRVWVKDOOEHWD[HGDVFRVWV


stating the actual cost of such printing or typewriting, and no greater amount than such actual

cost shall be taxed as costs.

Mode of Objecting to Costs.

3. If either party desires to object to the costs claimed by the opposite party, he shall,

within ten days after the service upon him of a copy of the cost bill, file with the clerk and

serve his objections. Said objections shall be heard and settled and the costs taxed by the

clerk. An appeal may be taken from the decision of the clerk, either by written notice of fivedays, or orally and instanter, to the justices of this court, and the decision of such justices

shall be final. If there be no objections to the costs claimed by the party entitled thereto, they

shall be taxed as claimed in his cost bill.

Indorsed Upon Remittitur.

4. In all cases where a remittitur or other final order is sent to a district court or other

inferior tribunal, the costs of the party entitled thereto as taxed by the clerk shall be indorsed

upon such remittitur or order, and shall be collected as other costs in such district court, or

other inferior court or tribunal, and shall not be subject to retaxation in such district court or

other tribunal.

RULE VII.

To Correct Error in Transcript.

For the purpose of correcting any error or defect in the transcript from the court below,

either party may suggest the same, in writing, to this court, and, upon good cause shown,

obtain an order that the proper clerk certify to the whole or part of the record, as may be


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required, or may produce the same, duly certified, without such order. If the attorney of the

adverse party be absent, or the fact of the alleged error or defect be disputed, the suggestion,

except when a certified copy is produced at the time, must be accompanied by an affidavit

showing the existence of the error or defect alleged.

RULE VIII.

ExceptionsDiminution of Record.

Exceptions or objections to the transcript, statement, the undertaking on appeal, notice of

appeal, or to its service or proof of service, or any technical exception or objection to the

record affecting the right of the appellant to be heard on WKHSRLQWVRIHUURUDVVLJQHGZKLFKPLJKWEHFXUUHGRQVXJJHVWLRQRIGLPLQXWLRQRIWKHUHFRUGPXVWEHWDNHQDWWKHILUVWWHUPDIWHUWKHWUDQVFULSWLVILOHGDQGPXVWEHQRWHGLQWKHZULWWHQRUWKHSULQWHGSRLQWVRIWKHUHVSRQGHQWDQGILOHGDWOHDVWRQHGD\EHIRUHWKHDUJXPHQWRUWKH\ZLOOQRWEHUHJDUGHG


the points of error assigned, which might be curred on suggestion of diminution of the record,

must be taken at the first term after the transcript is filed, and must be noted in the written or

the printed points of the respondent, and filed at least one day before the argument, or they

will not be regarded.

RULE IX.

Substitution in Case of Death.

Upon the death or other disability of a party pending an appeal, his representative shall be

substituted in the suit by suggestion in writing to the court on the part of such representative,

or any party on the record. Upon the entry of such suggestion, an order of substitution shall be

made and the cause shall proceed as in other cases.

RULE X.

Calendar to Consist ofUpon Motion.

1. The calendar of each term shall consist only of those cases in which the transcript shall

have been filed on or before the first day of the term, unless by written consent of the parties;provided, that all cases, both civil and criminal, in which the appeal has been perfected and

the statement settled, as provided in Rule II, and the transcript has not been filed before the

first day of the term, may be placed on the calendar, on motion of either party, after ten days'

written notice of such motion, and upon filing the transcript.

Subdivision 2 is hereby abrogated.

3. Causes shall be placed on the calendar in the order in which the transcripts are filed by

the clerk.


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RULE XI.

Time for Appellant to Serve BriefRespondent.

1. Within fifteen days after the filing of the transcript on appeal in any case, the appellant

shall file and serve his points and authorities or brief; and within fifteen days after the serviceof appellant's points and authorities or brief, respondent shall file and serve his points and

authorities or brief; and within fifteen days thereafter, appellant shall file and serve his points

and authorities or brief in reply, after which the case may be argued orally.

2. The points and authorities shall contain such brief statement of the facts as may be

necessary to explain the point made.


Oral Argument.

3. The oral argument may, in the discretion of the court, be limited to the printed or

typewritten points and authorities or briefs filed, and a failure by either party to file points and

authorities or briefs under the provisions of this rule and within the time herein provide, shall

be deemed a waiver by such party of the right to orally argue the case, and such party shall

not recover cost for printing or typewriting any brief or points and authorities in the case.

4. No more than two counsel on a side will be heard upon the oral argument, except by

special permission of the court, but each defendant who has appeared separately in the court

below may be heard through his own counsel.

Optional in Criminal Cases.5. In criminal cases it is left optional with counsel either to file written, printed, or

typewritten points and authorities or briefs.

When Submitted.

6. When the oral argument is concluded, the case shall be submitted for the decision of

the court.

Stipulation as to Time.

7. The times herein provided for may be shortened or extended by stipulation of parties or

order of court, or a justice thereof.

RULE XII.

Printing and Paper To Be Uniform.

In all cases where a paper or document is required by these rules to be printed, it shall be

printed upon similar paper, and in the same style and form (except the numbering of the

folios in the margin) as is prescribed for the printing of transcripts.


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RULE XIII.

Number of Copies To Be Filed.

Besides the original, there shall be filed ten copies of the transcript, briefs, and points and

authorities, which copies shall be distributed by the clerk.

RULE XIV.

Opinions Recorded.

All opinions delivered by the court, after having been finally corrected, shall be recorded

by the clerk.


RULE XV.

RehearingRemittitur to Issue, WhenTime May Be Shortened or Extended.

All motions for a rehearing shall be upon petition in writing, and filed with the clerk

within fifteen days after the final judgment is rendered, or order made by the court, and

publication of its opinion and decision. Personal service or service by mail upon counsel of a

copy of the opinion and decision shall be deemed the equivalent of publication. The party

moving for a rehearing shall serve a copy of the petition upon opposing counsel, who within

ten days thereafter may file a reply to the petition, and no other argument shall be heard

thereon. No remittitur or mandate to the court below shall be issued until the expiration of thefifteen days herein provided, and decisions upon the petition, except upon special order. The

times herein provided for may be shortened or extended, for good cause shown, by order of

court.

RULE XVI.

Opinion To Be Transmitted.

Where a judgment is reversed or modified, a certified copy of the opinion in the case shall

be transmitted, with the remittitur, to the court below.

RULE XVII.

No Paper To Be Taken Without Order.

No paper shall be taken from the court room or clerk's office, except by order of the court,

or of one of the justices. No order will be made for leave to withdraw a transcript for

examination, except upon written consent to be filed with the clerk.


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RULE XVIII.

Writ of Error, or Certiorari.

No writ of error or certiorari shall be issued, except upon order of the court, upon petition,

showing a proper case for issuing the same.

RULE XIX.

Writ of Error to Operate as Supersedeas.

Where a writ of error is issued, upon filing the same and a sufficient bond or undertaking

with the clerk of the court below, and upon giving notice thereof to the opposite party or his

attorney, and to the sheriff, it shall operate as a supersedeas. The bond or undertaking shall be

substantially the same as required in cases on appeal.


RULE XX.

When Returnable.

The writ of error shall be returnable within thirty days, unless otherwise specially directed.

RULE XXI.

To Apply.

The rules and practice of this court respecting appeals shall apply, so far as the same maybe applicable, to proceedings upon a writ of error.

RULE XXII.

Time Concerning Writ.

The writ shall not be allowed after the lapse of one year from the date of the judgment,

order, or decree which is sought to be reviewed, except under special circumstances.

RULE XXIII.

Concerning Change of VenueAdditional Notice Given.

Appeals from orders granting or denying a change of venue, or any other interlocutory

order made before trial, will be heard at any regular or adjourned term, upon three days'

notice being given by either appellant or respondent, when the parties live within twenty

miles from Carson. When the party served resides more than twenty miles from Carson, an

additional day's notice will be required for each fifty miles, or fraction of fifty miles, from

Carson.


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RULE XXIV.

Notice of Motion.

In all cases where notice of a motion is necessary, unless, for good cause shown, the time

is shortened by an order of one of the justices, the notice shall be five days.

RULE XXV.

Transcripts May Be TypewrittenTo Be Bound in Boards with Flexible Backs.

1. Hereafter all transcripts of the record in any action or proceeding may be typewritten.

The typewriting shall be the first impression, clearly and legibly done, with best quality of

black ink, in type not smaller than small pica, upon a good quality of typewriting paper,

thirteen inches long by eight inches wide, bound in boards with flexible backs, in volumes of

a size suitable for convenient handling and ready reference, and arranged and indexed as

required by the rules of this court. When so typewritten such transcript, in the GLVFUHWLRQRI

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discretion of the party appealing, need not be printed, but, if printed, all the rules concerning

the same shall still apply thereto.

Briefs May Be Typewritten.

2. Briefs and points and authorities, instead of being printed, may be typewritten upon the

same paper and in the same style and form as is prescribed for typewritten transcripts.

Copy To Be ServedTwo Copies To Be Filed.

3. When so typewritten, but one copy of such transcript need be filed in the case; but a

copy thereof shall be served upon the opposite party. Two copies of the briefs and points and

authoritiesviz., the first impression and a copy thereofshall be filed with the clerk, and a

copy shall be served upon each opposite party who appeared separately in the court below.

RULE XXVI.

Concerning Certificate of Naturalization.

Under no circumstances shall this court, or any of the district courts of the State of

Nevada, hear proof for the issuance of, or issue, final papers or certificates of naturalization to

any applicant therefor, at any time within the sixty days immediately preceding any general or

special state election of this state.


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RULE XXVII.

Payment of Advance Fee RequiredClerk Prohibited from Filing.

No transcript or original record shall be filed or cause registered, docketed, or entered until

an advance fee of twenty-five dollars is paid into the clerk's office, to pay accruing costs of

suit. The clerk of the court is prohibited from filing or registering any record without firsthaving received as a deposit the aforesaid fee.

____________

31 Nev. 17, 17 (1909) Rules of District Court

RULES

OF THE

District Court of the State of Nevada

___________

RULE I.

The hour of 10 o'clock a.m. is fixed for the opening of court, unless otherwise ordered.

RULE II.

Calendars to ContainAttorneys.

The clerk of each county of the state shall make three calendars for the district court of his

county, upon one of which he shall place all civil causes at issue upon questions of fact as

soon as the issue is made; upon another of which he shall place all civil causes at issue upon a

question of law, and all motions of every nature, except ex parte motions, as soon as the issue

is made, or as soon as notice of motion is filed; and upon the third of which he shall place all

criminal business of every kind. The names of the attorneys of the respective parties shall be

appropriately placed on such calendars. The clerk shall, on every Saturday, forward to the

presiding judge of the court, and also to the judge who is to sit in his county, a full statement

of the condition of the business of the court as shown by the calendars.

RULE III.

Notice as to Time.

The judge who is to hold court in any county shall give the clerk of such county notice of

the time when court will sit. The clerk shall, immediately upon receiving such notice, give all

the attorneys having business in said court, as shown by the calendar, and also all attorneys


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practicing in his county, notice in writing of the time when court will be held. He shall also

give notice of the time of holding court, in some newspaper printed and published at the

county-seat of his county, provided it can be done without expense.


RULE IV.

When Calendar CalledOrder.

Upon the meeting of the court, as provided in Rule III, the law calendar will first be called

and disposed of. The trial calendar will then be called, and causes at issue upon questions of

fact disposed of. When the calendar is called the causes will be set for a time certain. Parties

are expected to be ready to try their causes, whether at issue upon questions of law or fact,

when the calendar is called, and in the order in which they are set. Parties may, prior to the

meeting of the court, fix the day of trial by stipulation in writing, subject to the approval of

the court or judge. The daily business of the court will be disposed of in the following order:

FirstThe minutes of the previous day's business shall be read, approved, and signed by

the judge.

SecondEx parte motions.

ThirdProbate business, when there is no contest.

FourthIssues arising subsequent to the calling of the calendar shall be set.

FifthTrial of causes, as previously set.

SixthQuestions of law.

RULE V.Law Day.

On each Saturday of any session of court held by any district judge, law questions shall

take precedence, and be heard without previous setting or notice.

RULE VI.

Relating to Motions.

When any motion or proceeding has been noticed, or set for a time certain, and for any

cause is not heard at the time appointed, the hearing of the same shall be continued without

further order, and the motion or proceeding shall be placed upon the calendar and disposed of

as other issues thereon.

RULE VII.

Issues of LawDecision.

Any issue of law, and any motion of any nature or kind, may be heard orally by stipulation

of the parties, at any time or place agreed on in the state, with the consent of the judge first


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having jurisdiction of the cause, or such questions of law, or motions, as the case may be,

may be submitted on briefs of such judge, with his consent, and the decision may be filedWKHUHDIWHUDWDQ\WLPHZKLFKGHFLVLRQVKDOOIL[WKHWLPHZKHQWKHGHFLVLRQRIWKHFRXUWLVWREHFRPSOLHGZLWKDQGLQDOOVXFKFDVHVWKHSDUW\ZKRLVUHTXLUHGWRDFWE\VXFK

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thereafter at any time, which decision shall fix the time when the decision of the court is to be

complied with; and in all such cases the party who is required to act by such decision shall

receive due written notice thereof from the opposite party. Time for complying with such

decision shall commence to run from the time when service is made in the manner required

by the statutes for service of pleadings in a case;provided, that when the parties are present

by their respective attorneys when the decision is rendered, no notice shall be required.

RULE VIII.

DemurrerSet Down for Trial.

When a demurrer is interposed in any case, if it be made to appear to the satisfaction of the

court that such demurrer has not been interposed in good faith, but merely for delay, the

defendant shall only answer upon such terms as the court may prescribe, and, upon the filing

of the answer, the case shall be set down for trial for as early a day as the business of the court

will permit. In cases other than those above mentioned, ten days shall be allowed to amend or

plead, as the case may be, unless the court by its order fix a different time.

RULE IX.

Documents and Pleadings.

All documents and pleadings, intended for the files of this court, shall be on paper known

as legal cap, of good quality, and without interlineations, unless noted thereon by the clerk

at the time of filing. No original pleading or paper shall be amended by making erasures or

interlineations thereon, or by attaching slips thereto, except by leave of court. Copies of all

papers issued from this court, or to be used therein, which are required by law or rule of court

to be served, shall be upon legal cap paper in a legible hand, and in default of so doing, the

party failing shall be compelled to renew the paper, or be precluded from using the original,

as the court may deem proper.

RULE X.

Motions.

Motions in all cases, except ex parte motions, motions for continuance, and motions to

amend pleadings pending a trial, shall be noticed at least five days before the day specified

for a hearing, and a copy of all papers to be used by the moving SDUW\H[FHSWSOHDGLQJVRU


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RWKHUUHFRUGVRIWKHFRXUWVKDOOEHVHUYHGZLWKWKHQRWLFHRIPRWLRQ


party, except pleadings or other records of the court, shall be served with the notice of

motion. The notice of motion shall be in writing, and shall specify the papers to be used and

the names of witnesses to be examined by the moving party, and the grounds upon which the

motion is made;provided, that the court may, upon good cause shown, shorten or enlarge the

time for hearing. For a failure to comply with this rule the motion shall be denied.

RULE XI.

Hearing of Motions.

Upon reading and filing the notice of motion, with due proof of service of the same, and of

the papers mentioned therein, if no one appears to oppose the motion, the moving party shall

be entitled to have the motion decided. Upon the hearing, the affidavits to be used by either

party shall be endorsed and filed before the affidavits shall be used. The manner of making

motions shall be as follows:

FirstThe moving party shall read the moving papers, or state the contents thereof, or

introduce his oral evidence.

SecondThe party opposing shall then read or state the contents of his opposing papers,

or introduce his oral evidence.

ThirdThe moving party may then read his rebutting papers, or introduce oral evidence, if

admissible under the rules of practice in law or equity. The counsel for the moving party shall

make his argument, to be followed by the counsel of the opposing party, and the counsel forthe moving party may reply.

RULE XII.

Hearing of Motions of ContinuanceTestimony of AbsenteesCounter Affidavit.

All motions for the continuance of causes shall be made on affidavit; and, when made on

the ground of absence of witnesses, the affidavit shall state:

FirstThe names of the absent witnesses, and their present residence or abiding place, if

known.

SecondWhat diligence has been used to procure their attendance, or depositions, and the

causes of a failure to procure the same.

ThirdWhat the affiant has been informed and believes will be the testimony of each of

such absent witnesses, and whether or not the same facts can be proven by other witQHVVHVWKDQSDUWLHVWRWKHVXLWZKRVHDWWHQGDQFHRUGHSRVLWLRQVPLJKWKDYHEHHQREWDLQHG



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nesses than parties to the suit, whose attendance or depositions might have been obtained.

FourthAt what time the applicant first learned that the attendance or depositions of such

absent witnesses could not be obtained.

FifthThat the application is made in good faith, and not for delay merely. And no

continuance will be granted unless the affidavit upon which it is applied for conforms to this

rule, except where the continuance is applied for in a mining case, upon the special ground

provided by statute. A copy of the affidavits upon which a motion for a continuance is made,

shall be served upon the opposing party as soon as practicable after the cause for the

continuance shall be known to the moving party. Counter-affidavits may be used in

opposition to the motion. No amendments or additions to affidavits for continuance will be

allowed after they have been read, and no argument will be heard on motions for a

continuance, except such as relate to the sufficiency of the affidavits read on the hearing.

RULE XIII.

Attorneys as Witnesses.

If the attorney or counsel of either party offers himself as a witness on behalf of his client,

and gives evidence on the merits of the cause, he shall not argue the cause, or sum it up to the

jury, without the permission of the court.

RULE XIV.

Sureties.

No attorney will be received as surety on any bond or recognizance to be filed or entered

into in any action or proceeding in this court.

RULE XV.

DepositionsInterrogatories, How Settled.

A party making application for a commission to take the deposition of a witness out of the

state, shall serve, with the notice of such application, a copy of the direct interrogatories; and,

at least one day before the hearing of the application, the adverse party shall serve upon the

moving party a copy of the cross-interrogatories. The direct and cross-interrogatories shall be

settled at the time of hearing the application, unless the court or judge otherwise direct;

provided, that parties may agree to the interrogatories without VXEPLVVLRQWRWKHFRXUWRU

MXGJHRUPD\VWLSXODWHWKDWWKHGHSRVLWLRQVPD\EHWDNHQZLWKRXWZULWWHQLQWHUURJDWRULHV


submission to the court or judge, or may stipulate that the depositions may be taken without


19/402

written interrogatories.

RULE XVI.

Depositions.

When a deposition is received by the clerk, he shall endorse upon the envelope the time ofreceiving it, and immediately file it with the papers of the case in which it was taken; and at

any time afterward, upon the application of any attorney in the case, he shall open the same,

and endorse upon the envelope the time of opening, and the name of the attorney upon whose

application it was opened, and shall then file the deposition.

RULE XVII.

Amended Pleadings.

In cases where the right to amend any pleading is not of course, the party desiring to

amend shall serve, with the notice of application to amend, an engrossed copy of the

pleading, with the amendment incorporated therein, or a copy of the proposed amendment,referring to the page and line of the pleading where it is desired that the amendment be

inserted, and, if the pleading were verified, shall verify such amended pleading, or such

proposed amendment, before the application shall be heard.

RULE XVIII.

To Strike Out.

The party moving to strike out any part of a pleading shall, in the notice of motion,

distinctly specify the part asked to be stricken out.

RULE XIX.

Withdrawal of Papers.

No paper or record belonging to the files of the court shall be taken from the office and

custody of the clerk, except upon the special order of the judge in writing, specifying the

record or paper, and limiting the time the same may be retained; but in no case shall original

documentary evidence be taken from the office of the clerk.

RULE XX.

Additional UndertakingAttachments.If the undertaking required before issuing a writ of attachment is shown to the satisfaction

of the court or judge, upon proper notice, to be insufficient to secure the party whose property

is attached, against damages, the court or judge may UHTXLUHDQDGGLWLRQDOXQGHUWDNLQJWREHILOHGDQGLIQRWILOHGWKHDWWDFKPHQWVKDOOEHGLVVROYHG


20/402


require an additional undertaking to be filed, and if not filed, the attachment shall be

dissolved. No attachment shall be dissolved by reason of any defect in the attachment papers

that can be amended without affecting the substantial rights of the parties.

RULE XXI.

Trials.

Upon a reference to try all the issues, both of fact and law, and to report a judgment

thereon, the referee shall set forth in his report the facts found and conclusions of law

separately, and shall, upon the day when his report is filed, serve upon the respective parties,

or their attorneys, notice that such report is filed; and the trial of the cause for the purpose of

notice and motion for new trial shall not be deemed concluded until such notice is served.

RULE XXII.

AppealsCertificate of Appeal to StateSupersedeas.

When an appeal is perfected and a proper undertaking to stay proceedings is filed, it shall

stay all further proceedings in the court below, upon the judgment or order appealed from, or

upon the matter embraced therein; and if an execution or other order shall have been issued to

the sheriff, coroner, or elisor, he shall return the same, with the cause therefor, and his

proceedings thereunder, endorsed thereon upon receiving from the clerk a certificate, under

the seal of the court, of the perfecting of the appeal. The certificate shall state the title of the

action, the filing and service of the notice of appeal and the date of such filing and service,

together with the filing and approval of the undertaking staying all proceedings, and the date

of such filing and approval; and such certificate shall operate as a supersedeas of theexecution, or a vacation of the order.

RULE XXIII.

Foreclosing MortgageService by Publication.

If, in an action to foreclose a mortgage, the defendant fails to answer within the time

allowed for that purpose, or the right of plaintiff as stated in the complaint is admitted by the

answer, the court may make an order referring it to some suitable person as referee, to

compute the amount due to the plaintiff, and to such of the defendants as are prior

incumbrancers of the mortgaged premises, and to examine and UHSRUWZKHWKHUWKHPRUWJDJHVSUHPLVHVFDQEHVROGLQSDUFHOVLIWKHZKROHDPRXQWVHFXUHGE\WKHPRUWJDJHKDVQRWEHFRPHGXH



21/402

report whether the mortgages premises can be sold in parcels, if the whole amount secured by

the mortgage has not become due. If any of the defendants have been served by publication,

the order of reference shall also direct the referee to take proof of the facts and circumstances

stated in the complaint, and to examine the plaintiff, or his agent, on oath, as to any payments

which have been made, and to compute the amount due on the mortgage, preparatory to the

application for decree of foreclosure.

RULE XXIV.

Further Time.

When an order shall be made enlarging the time to file a statement or affidavits on motion

for new trial, the adverse party shall have the same number of days to propose amendments or

file counter-affidavits as was allowed by such order to file such statement or affidavits.

RULE XXV.

Settled by Referee.When a motion for a new trial is made in a cause tried before a referee, the statement shall

be settled by the referee.

RULE XXVI.

UndertakingsStay of ExecutionCertificate to State.

No stay of execution upon motion for a new trial shall be granted or allowed, nor

execution or other proceeding be stayed in any case, except upon the giving of a good and

sufficient undertaking, in the manner and form as other undertakings are given, to be

approved by the judge, with at least two sureties, for the payment of the judgment or debt, orperformance of the act directed by the judgment or order, in such amount as may be fixed by

the judge. An order to stay execution, or other proceedings in an action, shall be of no effect

until a copy of notice thereof is served upon the opposite party, or his attorney, and any other

party or officer whose proceedings are to be stayed thereby, unless said attorney or officer be

present at the time of making such order. And if an execution or other order shall have been

issued to the sheriff, coroner, elisor, or other person, he shall return the same with the cause

therefor and his proceedings thereunder endorsed thereon, upon receiving from the clerk a

certificate, under the seal of the court, of the granting of the stay of execution or other

proFHHGLQJV


ceedings. The certificate shall state the title of the action, the order staying the execution or

other proceedings, and the date of such order, together with the filing and approval of the

undertaking above required, and the date of such filing and approval; and such certificate


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shall operate as a supersedeas of the execution or a vacation of the order.

RULE XXVII.

Stipulations.

No agreement or stipulation between the parties in a cause, or their attorneys, in respect tothe proceedings therein, will be regarded, unless the same shall be entered in the minutes in

the form of an order, by consent, or unless the same shall be in writing, subscribed by the

party against whom the same shall be alleged, or by his attorney or counsel.

RULE XXVIII.

Juror, How Excused.

No juror shall be excused except in open court; and when a juror is excused, the clerk shall

immediately withdraw his name from the box for the period for which he has been excused.

RULE XXIX.

Guardians.

No person shall be appointed guardian ad litem, except upon the application of the infant

or otherwise, unless he be the general guardian of the infant, or an attorney or other officer of

this court, or is fully competent to understand and protect the rights of the infant; has no

interest adverse to that of the infant, and is not connected in business with the attorney or

counsel of the adverse party, nor unless he be of sufficient pecuniary ability to answer to the

infant for any damage which may be sustained for his negligence or misconduct in defense of

the suit.

RULE XXX.

Attorneys as Guardians Ad Litem.

Every attorney, or officer of this court, shall act as guardian of an infant defendant,

whenever appointed for that purpose by an order of the court. He shall examine into the

circumstances of the case, so far as to enable him to make the proper defense, and shall be

entitled to such compensation as the court may deem reasonable.


RULE XXXI.

Guardians Ad Litem.

No guardian ad litem shall receive any money or property, or proceeds of sale of real

estate, until he has given security by bond, in double the amount of such property or money,


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with two sureties, who shall justify as in other cases, approved by the judge and filed by the

clerk, conditioned for the faithful discharge of his trust.

RULE XXXII.

To Furnish to the Clerk.The counsel obtaining any order, judgment, or decree, shall furnish the form of the same to

the clerk.

RULE XXXIII.

To Be Filed.

The sheriff shall file with the clerk the affidavit and order on which any arrest is made,

within five days after such arrest is made.

RULE XXXIV.

Retax Costs.

The party against whom judgment is entered shall have two days after service of a copy of

the cost bill in which to move to retax costs.

RULE XXXV.

Mechanics' Liens.

In actions to enforce mechanics' liens, other lienholders coming in under the notice

published by the plaintiff shall do so by filing with the clerk and serving on the plaintiff, and

also on the defendant, if he be within the state, or be represented by counsel, a writtenstatement of the facts constituting their liens, together with the dates and amounts thereof,

and the plaintiff and other parties adversely interested shall be allowed five days to answer

such statements.

RULE XXXVI.

Motions.

No motion once heard and disposed of shall be renewed in the same cause, nor shall the

same matters therein embraced be reheard, unless by leave of the court granted upon motion

therefor, after notice of such motion to the adverse parties.

RULE XXXVII.

Appeal from Justices' CourtDismissed, When.

When an appeal from the justices' court to this court has been perfected, and the papers are

not filed in this court ZLWKLQILIWHHQGD\VIURPWKHGD\RIILOLQJWKHXQGHUWDNLQJRQDSSHDOWKLVFRXUWRQWKHSURGXFWLRQRIDFHUWLILFDWHIURPWKHMXVWLFHWRWKHHIIHFWWKDWDQDSSHDOKDVEHHQWDNHQDQGSHUIHFWHGEXWWKHSDSHUVKDYHQRWEHHQRUGHUHGXSRUWKHSURSHU


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FRVWVQRWSDLGRUXSRQVKRZLQJWKDWDQ\RWKHUQHFHVVDU\VWHSVKDYHQRWEHHQWDNHQVKDOOGLVPLVVWKHDSSHDODWWKHFRVWRIWKHDSSHOODQW


within fifteen days from the day of filing the undertaking on appeal, this court, on the

production of a certificate from the justice to the effect that an appeal has been taken and

perfected, but the papers have not been ordered up, or the proper costs not paid, or upon

showing that any other necessary steps have not been taken, shall dismiss the appeal at the

cost of the appellant.

RULE XXXVIII.

Appeal Dismissed, When.The plaintiff shall cause the papers in a case certified to this court under the provisions of

the 539th section of the practice act, to be filed in the office of the clerk of this court within

fifteen days from the day upon which the order of the justice is made directing the transfer of

the case. If the papers are not so filed the case shall be dismissed, upon filing a certificate

from the justice to the effect that he has certified the papers as required by said section, but

that the same have not been ordered up, or the proper costs paid; or if it shall appear that such

papers are not filed in this court by reason of the neglect of the plaintiff to pay the fees of the

clerk for filing the same.

RULE XXXIX.

Duties of Sheriff.

During the time the court remains in session it shall be the duty of the sheriff in attendance

to prevent all persons from coming within the bar, except officers of the court, attorneys and

parties to, or jurors or witnesses in, the cause or matter being tried or heard. The sheriff shall

also keep the passage way to the bar clear for ingress or egress.

RULE XL.

Instructions To Be Settled, When.

Before the argument begins, counsel shall prepare their instructions, submit them to theinspection of the opposite party, and then deliver them to the court. The court will hear

objections to instructions, and will, when practicable, settle the instructions in advance of the

agreement, and permit counsel to use them when addressing the jury.

RULE XLI.

Trials.


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When any district judge shall have entered upon the trial or hearing of any cause or

proceeding, demurrer or motion, RUPDGHDQ\UXOLQJRUGHURUGHFLVLRQWKHUHLQQRRWKHUMXGJHVKDOOGRDQ\DFWRUWKLQJLQRUDERXWVDLGFDXVHSURFHHGLQJGHPXUUHURUPRWLRQXQOHVVXSRQWKHZULWWHQUHTXHVWRIWKHMXGJHZKRVKDOOKDYHILUVWHQWHUHGXSRQWKHWULDORUKHDULQJRIVDLGFDXVHSURFHHGLQJGHPXUUHURUPRWLRQ


or made any ruling, order or decision therein, no other judge shall do any act or thing in or

about said cause, proceeding, demurrer or motion, unless upon the written request of the

judge who shall have first entered upon the trial or hearing of said cause, proceeding,

demurrer or motion.

RULE XLII.

Writs.

When an application or petition for any writ, rule or order shall have been made to a

district judge and is pending, or has been denied by such judge, the same application or

motion shall not again be made to the same or another district judge, unless upon the consent

in writing of the judge to whom the application or motion was first made.

RULE XLIII.

Duties of Judge.

No judge, except the judge having charge of the cause or proceeding, shall grant further

time to plead, move, or do any act or thing required to be done in any cause or proceeding,

unless it be shown by affidavit that such judge is absent from the state, or from some other

cause is unable to act.

RULE XLIV.

Causes Certified by State Land Register.

When a cause shall have been certified by the state land register to the district court for

trial, it shall be the duty of the first applicant, within thirty days after receiving notice of such

certification, to file and serve upon the adverse party a complaint setting forth the facts uponwhich he claims to be entitled to the land. The adverse party shall, within ten days after

service of the complaint, file and serve his answer, in which answer he shall set forth the facts

upon which he relies.

RULE XLV.

Vacating Judgments, Orders, Etc.Time to Amend.


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No judgment, order, or other judicial act or proceeding, shall be vacated, amended,

modified or corrected by the court or judge rendering, making, or ordering the same, unless

the party desiring such vacation, amendment, modification or correction shall give notice to

the adverse party of a motion therefor, within six months after such judgment was rendered,

order made, or action or proceeding taken.


To the Honorable Judges of the District Court of the State of Nevada:

Your Committee appointed to prepare Rules of Court submit for your approval and

adoption the foregoing rules, forty-five in number.

TRENMOR COFFIN,

ROBT. M. CLARKE,

R. H. LINDSAY,

W. E. F. DEAL,

H. F. BARTINE,

Committee.

Attest: James D. Torreyson, Secretary.

____________

It is hereby ordered that the foregoing rules, forty-five in number, be and they are hereby

adopted as the Rules of Practice of the District Court of the State of Nevada, and that they be

in force in each county thirty days after the date of their filing in the clerk's office of suchcounties.

RICHARD RISING,

Presiding District Judge.

R. R. BIGELOW,

A. L. FITZGERALD,

District Judges.

____________

31 Nev. 43, 43 (1909)

REPORTS OF CASES


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DETERMINED IN

THE SUPREME COURT

OF THE

STATE OF NEVADA

____________

JANUARY TERM, 1909

____________

31 Nev. 43, 43 (1909) Ex Parte Pittman

[No. 1795]

Ex Parte PITTMAN

1. Banks and BankingRight to Engage in Business.

Banking is a lawful business, in which it is the inherent right of every citizen to engage.

2. Banks and BankingRegulationsLegislative Power.

The banking business can be regulated, but not prohibited, and it is not only the legislature's power, but

its duty, to regulate the business so as to reduce failures to a minimum.

3. Banks and BankingInsolvent BanksReceipt of DepositsPenaltyPurpose.

The purpose of statutes making it a crime to receive deposits when a bank is known to be insolvent is not

only to protect innocent depositors, but to deter bank officers from so conducting a bank as to endanger its

solvency.

4. EmbezzlementBanks.

Prior to the act of March 29, 1907, making it a crime to receive deposits when the bank is known to be

insolvent, the general laws, making it a crime for any one to wrongfully convert property of another to his

own use, applied to bank offices who embezzled bank funds, the same as other embezzlers.

5. StatutesConstructionJudicial Function.

A court has no legislative powers, and cannot read into a statute something beyond the manifest intention

of the legislature as gathered from the statute; its function being to determine the legislature's intention

from the language used in accordance with the established rules of statutory construction.


6. Banks and BankingInsolvent BanksReceipt of DepositsLegislative Power.

The legislature as an exercise of police power can impose a penalty for the conduct of business by an

insolvent bank.

7. StatutesPenal StatutesSpecial Laws.

The act of March 29, 1907, making it a crime to receive bank deposits knowing the bank to be insolvent,


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is not unconstitutional, as being a special law for the punishment of offenses.

8. Constitutional LawClass Legislation.

Neither is the law objectionable as class legislation.

Original proceeding. Application by W. B. Pittman, on behalf of T. B. Rickey, for a writ of

habeas corpus.Prisoner remanded.

Statement of Facts

This is an original proceeding in habeas corpus. The writ in this case was heretofore

issued upon a duly verified petition in behalf of T. B. Rickey, alleging that he was unlawfully

confined and restrained of his liberty by the sheriff of Ormsby County. From the return upon

the writ it appears that the said T. B. Rickey was at the time of its issuance held in custody by

said sheriff upon bench warrants regularly issued by the First Judicial District Court of the

State of Nevada, in and for Ormsby County, upon seven indictments found by the grand jury

of said county, six of which having been found on the 27th day of February, 1908, and one

thereof having been found on the 3d of March following; that all of said indictments chargedthe said T. B. Rickey with the crime of embezzlement contrary to the provisions of that

certain act of the legislature of this state entitled An act making any banker, or any officer,

agent, or clerk of any bank, receiving deposits, knowing that said bank is insolvent, guilty of

embezzlement, and providing for the punishment thereof, approved March 29, 1907. (Stats.

1907, p. 414, c. 189.)

This case was heretofore orally argued and thereafter finally submitted on briefs, together

with Cases Nos. 1781 and 1790, on the 17th day of December, 1908.

Petitioner's contention in this case is that the said T. B. Rickey was unlawfully restrained

of his liberty for the reason that the said act, for the violation of which said indictments were

found, is in contravention of the State and Federal ConVWLWXWLRQVDQGLVYRLGDQGKHQFHWKDWKHLVQRWFKDUJHGZLWKDQRIIHQVHDJDLQVWWKHODZ


stitutions, and is void, and hence that he is not charged with an offense against the law.

The above-entitled statute contains two sections reading as follows:

Section 1. Every officer, agent, teller, or clerk of any bank, and every individual banker,

or agent, teller or clerk of any individual banker, who receives any deposits, knowing that

such bank or association or banker is insolvent, shall be guilty of embezzlement.

Sec. 2. Every person, officer, agent, teller or clerk convicted under the provisions of this

act shall be imprisoned in the state prison for not less than one or more than fifteen years.

James F. Peckand W. B. Pittman, for Petitioner:

I. The act of March 27, 1907, is unconstitutional, null and void, in that it violates the

provisions of the fourteenth amendment to the Constitution of the United States, wherein it is


29/402

provided: No state shall make or enforce any law which shall abridge the privileges or

immunities of citizens of the United States, nor shall any state deprive any person of life,

liberty or property without due process of law, nor deny to any person within its jurisdiction

the equal protection of the laws.

II. The said statute is unconstitutional, null and void, in that it violates the provisions of

article IV, section 20, of the Constitution of the State of Nevada, wherein it is provided: Thelegislature shall not pass local or special laws for the punishment of crimes or

misdemeanors.

III. Said statute is unconstitutional, null and void, in that it violates the provisions of article

IV, section 2, of the Constitution of the State of Nevada, wherein it is provided: 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 operation throughout the state.

IV. The said statute is unconstitutional, null and void, in that it violates the provisions of

article IV, section 17, of the Constitution of the State of Nevada, wherein it is proYLGHG(DFKODZHQDFWHGE\WKHOHJLVODWXUHVKDOOHPEUDFHEXWRQHVXEMHFWDQGPDWWHUVSURSHUO\

FRQQHFWHGWKHUHZLWKZKLFKVXEMHFWVKDOOEHEULHIO\H[SUHVVHGLQWKHWLWOH


vided: Each law enacted by the legislature shall embrace but one subject and matters

properly connected therewith, which subject shall be briefly expressed in the title.

V. Said statute is unconstitutional, null and void, in that it violates the provisions of article

I, section 8, of the Constitution of the State of Nevada, wherein it is provided: No person

* * * shall be deprived of life, liberty or property without due process of law.

VI. Said statute is unconstitutional, null and void, in that it violates the provisions of

article I, section 14, of the Constitution of the State of Nevada, wherein it is provided: Thereshall be no imprisonment for debt except in cases of fraud, libel or slander.

VII. Said statute violates the said provisions of the United States Constitution hereinbefore

specified, in that it makes a crime of the doing of an act which it is the right of every citizen

of the United States to do when the act is done without the accompaniment of fraud, intent to

defraud, or criminal negligence, and said statute does not require fraud, or the intent to

defraud, or criminal negligence as an element of said crime; and in that it prohibits the doing

of the acts specified in said statute when done by an officer, agent, teller, or clerk of any bank,

and every individual banker or agent, teller, or clerk of any individual banker, while all other

persons can do the acts therein prohibited.

VIII. The said statute violates the said provisions of article IV, section 2, of theConstitution of the State of Nevada, in this, that the acts prohibited by said statute are such

acts as may be committed by other persons with the same degree of turpitude as by the

persons enumerated in said statute, and a general law could be made applicable to prohibit the

said acts.

IX. Said statute violates the said provisions of article IV, section 20, of the Constitution of

the State of Nevada, in this, that it provides a special punishment for the crime of

embezzlement by the persons enumerated in said statute, when, at the same time, the general


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law of the State of Nevada provides for the punishment of embezzlement when committed by

other persons, which general law provides a different punLVKPHQWIURPWKDWSURYLGHGLQVDLGVWDWXWHDQGLQWKDWWKHVDLGVWDWXWHSURYLGHVDSXQLVKPHQWZKHQWKHDFWVVSHFLILHGLQVDLGVWDWXWHDUHGRQHE\WKHSHUVRQVWKHUHLQHQXPHUDWHGDQGGRHVQRWSURYLGHDSXQLVKPHQWIRUWKHVDPHDFWVZKHQGRQHE\DQ\RWKHUSHUVRQRUSHUVRQVWKDQWKRVHVRHQXPHUDWHG


ishment from that provided in said statute; and in that the said statute provides a punishment

when the acts specified in said statute are done by the persons therein enumerated, and does

not provide a punishment for the same acts when done by any other person or persons than

those so enumerated.

R. C. Stoddard, Attorney-General,L. B. Fowler, Deputy Attorney-General, P. A.

McCarran, andE. E. Roberts, District Attorneys, for the State.

By the Court, Norcross, C. J.:

Counsel for petitioner in their brief say: In presenting the constitutional questions we will

follow these lines: That the business of banking, including the contract with depositors of the

bank for every nature of deposits, is a lawful business, in which it is the inherent right of

every citizen to engage; that the legislature can only regulate such a business, or the making

of such a contract in the absence of fraud or turpitude; that its power to prohibit commences

and ends with the fraud or turpitude; that the statute of Nevada prohibiting the receipt of

deposits is not predicated upon fraud, and it therefore prohibits an act which it is the inherent

right of every person to do; that the court has not power to read into the statute the element of

fraud, which must be read into the statute to sustain its constitutionality; that if the court can

read into the statute the element of fraud, to wit, a false pretense, then the statute violates the

provisions of the Constitution of Nevada, inhibiting any special law for the punishment of

crimes or misdemeanors; that the statute is class legislation and denies the equal protection of

the laws; that the law is a special law, under the Constitution of Nevada, in a case where a

general law could be made applicable.

That the business of banking is a lawful business in which it is the inherent right of every

citizen to engage will not be questioned. It is a business, however, with which the general

public welfare is most clearly identified. Money is said to be the very life-blood of the nation.

The banking business has grown to be a part and parcel of our financial system, and is soregarded by both the federal and state governments. The JUHDWEXONRIEXVLQHVVWUDQVDFWLRQVLQVWHDGRIEHLQJHIIHFWHGE\DQDFWXDOWUDQVIHURIPRQH\LVDFFRPSOLVKHGWKURXJKWKH

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bank is in an insolvent condition. The purpose of these penal statutes is not only to protect

innocent depositors, but to deter banking officials from so conducting the business of the

bank as to endanger its solvency. These statutes vary in form and effect in different states, but

their purpose is the same. Prior to the act of 1907, supra (Stats. 1907, p. 414, c. 189), this

state had no legislation of this character; the general laws making it a crime for any one to

wrongfully convert to his own use the property of another applied to bank officials whoembezzled bank funds, the same as they did to any person who might embezzle property or

funds of another. Not until this act, however, was it attempted to make it an offense for an

owner, officer, or employee of a bank to receive a deposit into an insolvent bank, he knowing

it at the time to be insolvent. Under the provisions of this act, although the official receiving

the deposit may have no interest whatever in the bank, and although he may receive no

personal benefit from the deposit, still he is made criminally liable, if at the time he has

knowledge of the bank's insolvent condition.


Counsel for petitioner argues that, unless a false pretense is read into the statute, no

justification exists for penalizing the receiving of a deposit into an insolvent bank, and that a

court has no power to read into the statute a false pretense. It must be conceded that a court

has no legislative powers and cannot read into a statute something that is not within the

manifest intention of the legislature as gathered from the statute itself. The function of a

court, however, is to determine the intention of the legislature from the language used in

accordance with the established rules of statutory construction. If it can be said that when a

bank is opened and is doing business with the public that of itself is in effect a public

declaration of solvency, then we can see no necessity of the legislature in passing a statute

dealing with the subject to declare in the statute the existence of a state of facts which mustbe conceded to exist. A bank does business upon the confidence of the public in its solvency.

When the public ceases to have such confidence, the suspension of the bank is inevitable.

In the case ofBakerv. State, 54 Wis. 368, 12 N. W. 12, the court, considering a similar

statute, said: A bank implies capital, and capital invites confidence. A man holding himself

out as banker or broker thereby gives public proclamation that he has money and property

readily convertible into money in his possession and subject to his control, and for that reason

he may be safely trusted. It requires no argument to show that such assurance is most inviting

and influential with the mass of the people, especially with those unacquainted with the

history and character of the man. With them the banker or broker is intrusted with money

merely because he is a banker or broker, and hence supposed to have surplus capital as astanding guaranty of his agreements and his integrity. For an insolvent banker, company, or

corporation to continue the business of banking is to hold out assurances of responsibility and

surplus capital where neither exists. To do so knowingly is to secure the confidence, and

hence obtain the money, of the ignorant and unwary by an implied deception. It is the old

story of securing the victim by a display of false colors. To suppress this mischief, WRVDYHWKHSXEOLFIURPEHLQJLQGXFHGWRGHSRVLWPRQH\ZLWKVXFKLQVROYHQWE\WKHLPSOLHGDVVXUDQFHRIUHVSRQVLELOLW\DQGZHDOWKHVVHQWLDOWRWKHEXVLQHVVZKHQWKH\GRQRWLQIDFW


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to save the public from being induced to deposit money with such insolvent by the impliedassurance of responsibility and wealth essential to the business, when they do not in fact

exist, was the evident purpose of the statute.

See, also,In re Koetting, 90 Wis. 166, 62 N. W. 622; State v. Shove, 96 Wis. 1, 70 N. W.

312; 37 L. R. A. 142, 65 Am. St. Rep. 17;In re Cook(C. C.) 49 Fed. 833, 842.

InMeadowcraftv. People, the Supreme Court of Illinois, considering the statute of that

state, said: As said by the Supreme Court of Wisconsin inBakerv. State, 54 Wis. 368, 12 N.

W. 12, a bank implies capital, and invites confidence. A man holding himself out as a banker

thereby gives public proclamation that he has money and property readily convertible into

money in his possession and subject to his control, and for that reason he may be safely

trusted; and his business not only affects himself as a banker, but every person who deals withhim as such. The object of the statute that is here challenged was evidently to protect the

public from being induced to deposit money with insolvent bankers, and there are manifest

reason and necessity for protecting the community in their dealings with persons engaged in

the banking business that do not exist in respect to their transactions with those employed in

the ordinary agricultural, manufacturing, merchandising and mining pursuits. (Meadowcraft

v. People, 163 Ill. 56, 45 N. E. 303, 35 L. R. A. 176, 54 Am. St. Rep. 477.)

See, also, State v.Darrah, 152 Mo. 522, 54 S. W. 226;McClure v. People, 27 Colo. 358,

61 Pac. 612;Robertson v. People, 20 Colo. 279, 38 Pac. 326; State v.Beach, 147 Ind. 74, 43

N. E. 949, 46 N. E. 145, 36 L. R. A. 179.

In the case ofCommonwealth v.Rockafellow, 163 Pa. 139, 29 Atl. 757, considering the

case of a defendant convicted for the violation of a statute very similar to ours, and whichstatute, hereinafter quoted, makes no reference to fraud or false pretense, the court said: The

offense clearly and distinctly defined is the fraudulent receipt of the money of a depositor.

A bank of necessity must do business with the public upon its virtual declaration of

solvency. The legislature, within the lawful exercise of its police power, can impose a penalty

for WKHFRQGXFWRIVXFKEXVLQHVVZKHQVXFKEDQNRUEDQNHULVLQIDFWLQVROYHQW


the conduct of such business when such bank or banker is in fact insolvent. The contentionthat this statute violates the provisions of the Constitution of this state inhibiting any special

law for the punishment of crimes or misdemeanors, and that it is class legislation, is without

merit. This court has repeatedly held that the legislature may enact laws which apply only to

certain classes, if the basis or the classification is reasonable. (Pyramid L. and L. Co. v.

Pierce, 30 Nev. 237;Ex Parte Boyce,27 Nev. 299; State v. Cal. M. Co., 15 Nev. 249.)

Judge Cooley treating this subject in his work on Constitutional Limitations, at pages 482,


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483, says: The legislature may also deem it desirable to prescribe peculiar rules for the

several occupations, and to establish distinctions in the rights, obligations, duties, and

capacities of citizens. The business of common carriers, for instance, or of bankers, may

require special statutory regulations for the general benefit, and it may be a matter of public

policy to give laborers in one business a specific lien for their wages when it would be

impracticable or impolitic to do the same for persons engaged in some other employments. Ifthe laws be otherwise unobjectionable, all that can be required in these cases is that they be

general in their application to the class or locality to which they apply, and they are then

public in character, and of their propriety and policy the legislature must judge. Laws which

regulate criminal prosecutions and proceedings or provide that acts done by certain classes of

persons shall be crimes and state the punishment therefor are valid as applying to all of a

class, where the classification is based upon a reasonable distinction; and it is for the

legislature, and not the courts, to decide what is a reasonable distinction; the courts being able

to hold a law unconstitutional only when the classification is based on purely statutory

grounds. (8 Cyc. 1055, and authorities cited.)

In the case ofGulf R. R. Co. v.Ellis, 165 U. S. 150, 17 Sup. Ct. 255, 41 L. Ed. 666, the

Supreme Court of the United States said: It is not within the scope of the fourteenthamendment to withhold from the states the power of classification, and, if the law deals alike

with all of a certain class, it is not obnoxious to the charge of a denial of equal protection.


While, as a general proposition, this is undeniably true, yet it is quite true that such

classification cannot be made arbitrarily. The classification must always rest upon some

difference which bears a reasonable and just relation to the act in respect to which the

classification is proposed, and can never be made arbitrarily and without any such basis.Classification for legislative purposes must have some reasonable basis on which to stand. It

must be evident that differences which would serve for a classification for some purposes

furnish no reason whatever for a classification for other legislative purposes. The differences

which will support class legislation must be such as in the nature of things furnish a

reasonable basis for similar laws and regulations.' We think it manifest that there is a

reasonable basis for such a classification as is made by the statute in question.

In the case ofEaston v.Iowa, 188 U. S. 220, 23 Sup. Ct. 288, 47 L. Ed. 452, a case

involving the conviction of a president of a national bank under the Iowa statute, the Supreme

Court of the United States said: Undoubtedly a state has the legitimate power to define and

punish crimes by general laws applicable to all persons within its jurisdiction. So, likewise, itmay declare, by special laws, certain acts to be criminal offenses when committed by officers

or agents of its own banks and institutions. But it is without lawful power to make such

special laws applicable to banks organized and operating under the laws of the United

States. See, also,Dreyerv. Pease (C. C.) 88 Fed. 878.

In the case ofBakerv. State, supra, which was decided in 1882, the Wisconsin court

mentions the States of Illinois, Iowa, Kansas, Louisiana, California, Missouri, South

Carolina, and Michigan as having statutes of this character, and says: These statutes like our


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own are of recent date, and we are not aware of the constitutionality of any of them having

been brought in question in any court; but the extent of the legislation seems to indicate a

pretty general belief in the legislative power. To the foregoing list of states may be added

many others, but in all cases where the constitutionality of these statutes have been raised so

far as we are aware they have in every instance been sustained. In a number of cases ZKHUH

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where convictions have been considered under acts of this character no constitutional

questions appear to have been raised.

A case to which our attention has been called, but which, we think, can hardly be regarded

as exceptional, is that ofCarrv. State, 106 Ala. 35, 17 South. 350, 34 L. R. A. 634, 54 Am.

St. Rep. 17. The act in question in that case made it a misdemeanor for the president, cashier,

or other officer of a bank, etc., to receive a deposit, knowing or having good cause to believe

that the bank is in a failing condition. For such an offense a fine was imposed of not less than

double the amount of the deposit, one-half of which should go to the person who made the

deposit. A further section provided that the payment back to the depositor of the amount of

the deposit before conviction together with costs shall be a good and lawful defense to any

prosecution under this act. A brief excerpt from the opinion will serve to distinguish this

case from other cases, although it is manifest, we think, that the Alabama statute under

consideration differs materially in character from those adopted in other states to which our

attention has been called:

There cannot be two opinions as to the intent and meaning or the effect upon the whole

enactment of this last and most remarkable provision. It is a declaration of the baldest and themost direct character to one party to a transaction whereby he has incurred a debt to the other

in the name of the state that, unless he has paid that debt, he shall be arrested, held to trial,

tried, convicted, fined and imprisoned at hard labor, and this obviously not for any taint of

criminality in the transaction out of which the debt arose, but purely and simply for the

nonpayment of the debt. For this default, and until it is purged either by simply paying the

debt and accrued costs before conviction or by working out double the debt and costs, the

debtor may be imprisoned for an indefinite time before trial merely and only because he does

not pay the debt and expenses of putting this coercion upon him, there being no pretense of

even ultimately punishing him for taking the deposit, if the preliminary imprisonPHQWVKDOOKDYHWKHGHVLUHGHIIHFWRIH[WRUWLQJWKHPRQH\KHRZHVWKHGHSRVLWRURXWRIKLP


ment shall have the desired effect of extorting the money he owes the depositor out of him.

* * *

This statute was held unconstitutional because it violated the provisions of the Alabama


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Constitution inhibiting imprisonment for debt, which constitutional provisions, however,

differ from ours, in that the Nevada Constitution makes an exception in cases of fraud, libel,

or slander, while the Alabama Constitution makes no exceptions. The Pennsylvania statute

heretofore referred to provides: That any banker, broker or officer of any trust or savings

institution, national, state or private bank, who shall take and receive money from a depositor

with the knowledge that he, they or the bank is at that time insolvent, shall be guilty ofembezzlement and shall be punished by a fine in double the amount so received, and

imprisoned from one to three years in the penitentiary. Laws Pa. 1889 (P. L. 145).

In a note to the case ofCommonwealth v.Junkin, 170 Pa. 194, 32 Atl. 617, 31 L. R. A.

124, we find: In Commonwealth v. Smith, 31 Lanc. Law Rev. 350, the Pennsylvania act of

May 9, 1889, was attacked as unconstitutional, but the court, without directly passing upon

the question, upheld the indictment, thereby implying that the statute was constitutional.

In the case ofCommonwealth v.Rockafellow, supra, the conviction of a private banker

was sustained under the act. The question of its constitutionality, however, was not brought in

question. The court said: The indictment charges that the defendant, being a banker and

knowing he was insolvent, received money from a depositor. The averment in the indictment

follows the language of the act, and is in substantial compliance with the rules of criminalpleading. The offense clearly and distinctly defined is the fraudulent receipt of the money of a

depositor. The act is not to be nullified because this is called embezzlement, and by a

construction which reads into its provisions the definition of that offense. The word was not

well chosen, but the intention is clear.

See also the case ofCommonwealth v.Hazlett, 14 Pa. Super. Ct. 352.

The statute of this state is identical with, and was doubtOHVVFRSLHGIURPWKH&DOLIRUQLDVWDWXWHDGRSWHG)HEUXDU\H[FHSWLQJWKDWWKH&DOLIRUQLDVWDWXWHPDNHVWKH

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less copied from, the California statute adopted February 14, 1872, excepting that the

California statute makes the offense only a misdemeanor. (Cal. Penal Code, sec. 562.)