Opinion of the Court-Belknap, J.

equal quarterly payments of one hundred and fifty dollars. The board allowed relator's claim for services for the quarter year ending June 30, 1881, at the rate then fixed, together with mileage. Afterward the respondent, who is the recorder and ex officio the auditor of Humboldt county, refused to allow the same for the reason that the statute under which relator's compensation had been fixed, and which permitted him to receive for his services not exceeding the sum of six hundred dollars per annum, together with mileage (sec. 3086, Comp. Laws), had been repealed by the act of March 11, 1879, commonly known as the salary act. (Stats. 1879, 133.)

This act by its first section provides that "From and after the first Monday in January, 1881, the following named officers of the several named counties in this state shall receive the following annual salaries, which shall be in full for all services, and all ex officio services required of them." The succeeding sections are severally devoted to the affairs of each county of the State.

The seventh section provides that each of the commissioners of Humboldt county shall receive the sum of five hundred dollars.

The auditor claims that the compensation of the commissioners is regulated by the provisions of the last-mentioned law, rather than by the law in force at the time the board met in January, 1879, and admits that relator is entitled to one fourth of five hundred dollars for his quarter-year services, ending June 30, 1881, but not to mileage.

The views of the auditor are correct. The language of the first section of the salary act, above quoted, is too plain to admit of construction. If the legislature intended to exclude long-term county commissioners, elected at the election of 1878, from the operations of the general salary law, and to have continued their compensation at the rate theretofore established during the continuance of the term for which they were elected, language expressive of such intention should have been employed.

The law, as it stands upon the statute book, applies to all county officers, irrespective of the time of their election,

Opinion of the Court-Belknap, J.

and we can not, in defiance of its language, interpolate any exception to its provisions. The provision allowing mileage in the former law was intended as part of the compensation of commissioners for their services. Mileage is not mentioned in the present law, but the language of the first section, providing that the salaries fixed "shall be in full for all services," excludes the idea that the legislature intended to allow the former provision upon that subject to stand.

It is also said that the law of 1879 is obnoxious to the objection that it impairs the obligation of a contract, contrary to the prohibition of the constitution of the United States.

Under analogous facts the same objection was made by the mayor of Philadelphia to an ordinance of the council of that city reducing his salary. The court determined, in accordance with every well-considered case upon the subject, that no contract was created between the government and the officer by his acceptance of the office. The court said: "These services rendered by public officers do not, in this particular" (that of compensation), "partake of the nature of contracts, nor have they the remotest affinity thereto. As to stipulated allowance, the allowance, whether annual, per diem, or particular fees for particular services, depends on the will of the law-makers; and this whether it be the legislature of the state or a municipal body empowered to make laws for the government of a corporation. This has been the universal construction. (Commonwealth

v. Bacon, 6 Serg. & R. 322.)

* *

The subject received a very thorough investigation in the case of Connor v. The City of New York, 2 Sandf. 355. In that case the compensation of the plaintiff, the clerk of the city and county of New York, was changed by an act of the legislature so as to take effect during his term of office. The court considered that there was no contract, express or implied, between the government and the officer, because there was no agreement that he should fulfill the duties of the office for any specified time, but that he could resign at his pleasure, irrespective of the desire of the government.

In discussing the subject the following language was

Opinion of the Court-Belknap, J.

employed: "In our opinion a public officer is an agent, elected or appointed to perform certain political duties in the administration of the government. The legislative power prescribes these duties, and gives to the officer such compensation for their discharge as is deemed just. The same sovereign power which prescribes the duties may alter them at pleasure. It may increase them without enhancing the compensation. (Andrews v. The United States, 2 Story, 202.) In like manner the same power may diminish the compensation without lessening the duties. If the officer receive fees it may abolish some, reduce others, or take away all and compensate him by a salary. His right to the emoluments of the office is held subject to all these modifications. All these consequences flow from the political character of the agency and the supremacy of the government in regulating it for the public good." Following this train of reasoning the court was of opinion that an office created by the constitution, with its term and salary defined, could be terminated by the people in their sovereign capacity by the adoption of a new constitution.

The constitution of the state of New York, like that of the state of Nevada, enumerated certain special cases in which the legislature was forbidden either to increase or diminish the salary during the term for which the officer was elected. This constitutional prohibition was referred to by the court in New York (and it is as applicable here as there) for the purpose of showing that in all other cases the legislature was unrestricted in its authority to change the compensation of officers. (See also Conner v. Mayor etc., 5 N. Y. 285; Denver v. Hobart, 10 Nev. 28.)

Mandamus denied.

REPORTS OF CASES

DETERMINED IN

THE SUPREME COURT

OF THE

STATE OF NEVADA.

JANUARY TERM, 1882.

[No. 1,088.]

C. E. ABBOTT ET AL., APPELLANTS, v. A. PRIMEAUX, RESPONDENT.

versy.

EJECTMENT-PATENT TO SURFACE GROUND OF MINING CLAIM-WHEN NONSUIT SHOULD NOT BE GRANTED.-Plaintiff claimed title to a town lot under a patent issued for a mining claim embracing the land in controThe court granted a nonsuit upon the ground that it had not been alleged or proven that plaintiff required said land or had any use for the same in the working of the mining claim: Held, that the patent made out a prima facie case for the plaintiff, and that the court erred in granting a nonsuit.

APPEAL from the District Court of the Seventh Judicial District, Elko County.

The facts sufficiently appear in the opinion.

R. R. Bigelow and G. F. Talbot, for Appellants:

I. The plaintiffs having shown a patent title from the United States, instead of being nonsuited, were entitled to a judgment in their favor. The plaintiffs were not called on to show that they required said ground, or had any use for the same in working their mining claim. They showed an absolute title to it, and were entitled to its possession, without regard to what use they might put it to afterwards.

Opinion of the Court-Belknap, J.

A patent imparts absolute verity, only to be questioned in a direct proceeding against it. (Leese v. Clark, 18 Cal. 573; Doll v. Meador, 16 Id. 323; The Eureka case, 4 Saw. 319.) Producing a patent makes out a prima facie case. (Smith v. Athern, 34 Cal. 511.) A patent conveys the fee to the soil with all its incidents and appurtenances. (Van Sickle v. Haines, 7 Nev. 249, 261, 283.) And entitles the holder of it to the possession of the land. (Bagnell v. Broderick, 13 Pet. 450; Gibson v. Chouteau, 13 Wall. 102; Moore v. Smaw, 17 Cal. 199, 224, 226.) The grant itself is evidence that every prerequisite to its issuance had been performed. (Patterson v. Winn, 11 Wheat. 383; Doll v. Meador, 16 Cal. 325; 3 Wash. Real Property, 193.)

II. The defendant had shown no title to the premises, nor any interest therein that would authorize him to call the true title to his aid, if plaintiffs did not have it. He must do this before he can be permitted to question the patent held by plaintiffs. (People v. Stratton, 25 Cal. 251;. Doll v. Meador, 16 Id. 324; Dodge v. Perez, 2 Saw. 654.)

A. W. Fisk, for Respondent:

I. The common law doctrine, that he who possesses the surface of the earth owns all to the center of the earth, is greatly modified as to the rights of miners and others on the public lands. One may be entitled to the occupancy of the surface, another to the veins of mineral running under the said land. (Bullion M. Co. v. Cræsus G. & S. M. Co., 2 Nev. 168.)

II. The laws of this state do not recognize the surface ground of a mine as property, i. e., property subject to taxation. (Stat. 1865, 271, sec. 4.)

III. The mine owner is only entitled to the surface ground for working purposes of his mine. The cases cited by the appellant do not apply. They are all in relation to land taken up either for agricultural or town-site purposes.

By the Court, BELKNAP, J.:

In an action of ejectment for a lot of land in the town of Tuscarora, in Elko county, in which the answer admitted