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Watts & S. 166. The listing of lands to the wrong person affords no ground for restraining the collection, by sale of the property itself, of the taxes due thereon. Sections 4023-4026, inclusive, of the Political Code, prohibit courts and judges from enjoining the collection of any tax, and from restraining the sale of the property for nonpayment of any tax, except in those instances where the tax is illegal, or not authorized by law, or where the property is exempt from taxation, and provide the means and remedies whereby the rights of persons who deem the taxes irregularly or improperly demanded of the owners, or sought to be enforced against the property, may be guarded and protected; and of these remedies the plaintiff, if injured, may avail himself. In this case it is not pretended that the property was exempt, nor that the taxes were not levied in conformity with the law, nor is there a suggestion that the valuation was unjust or excessive. The plaintiff and his grantors knew-or, what is equivalent to knowledge, were bound to know that the property was liable to taxation, and would be assessed annually, and that a listing to one other than the owner would not avoid an assessment otherwise regular. He and they knew when the taxes would fall due and should be paid, and he cannot in this action successfully urge, as a reason why his lands should be relieved of the lien for taxes, that he did not know of the assessment, and had no opportunity to discharge the taxes.

3. Section 4017 of the Political Code provides that the taxes assessed prior to July 1, 1895, must be collected under the laws in force at the time the assessment was made, and in the same manner as if the Code had not been passed. When the assessment of 1890 was made, a notice of four weeks before the sale of property for delinquent taxes was required, whereas the notice under which the treasurer now threatens to sell the lands is but a three-weeks notice. This irregularity or infirmity, whatever consequences might flow from it touching the proposed sale when made, has not the effect of rendering the taxes illegal or unauthorized by law. Nor does the fact that the treasurer intends to violate sections 3922 and 3923 of the Political Code, by exposing for sale, for the delinquent taxes for 1898, part of the lands purchased by the county at the sale for the taxes of 1897, and yet unredeemed, entitle the plaintiff to an injunction. Section 4026, supra, declares that the remedy provided by sections 4024 and 4025 "shall supersede the remedy of injunction and all other remedies which might be invoked to prevent the collection of taxes or licenses alleged to be irregularly levied or demanded, except in unusual cases, where the remedy hereby provided is deemed by the court to be inadequate." There is nothing in this case sufficient to warrant the granting of the equitable remedy of injunction against the intended sale. The remedy at

law is plain and adequate for the redress of the plaintiff's alleged grievances. The judgment is therefore reversed, and the cause remanded, with instructions to sustain the deaurrer to the complaint. Reversed and remanded.

BRANTLY, C. J., and HUNT, J., concur.

(25 Nev. 235)

INDA v. McINNIS, Sheriff. (No. 1,564.) (Supreme Court of Nevada. Nov. 28, 1899.) PLEADING-SUFFICIENCY OF COMPLAINT—JURISDICTION OF JUSTICE COURT.

1. In a complaint on a receipt for a deposit of money, to be returned "when settled that plaintiff is not liable for a license on sheep," the necessity of an allegation of settlement of plaintiff's liability as mentioned in the receipt is not avoided by the averments of ownership in the plaintiff of 5,396 acres of land in the state, and that the license tax is illegal.

2. In an action on a receipt for $300, "to be returned when it is settled that plaintiff is not liable for a license on sheep," where it does not appear that the claim has been settled, the averment that the tax is illegal will not deprive the justice of the peace of jurisdiction.

Appeal from district court, Washoe county; B. F. Curler, Judge.

Action by Arnaud Inda against W. H. McInnis, as sheriff. From an order sustaining a demurrer to the complaint and judgment entered thereon, plaintiff appeals. Affirmed.

Torreyson & Summerfield and F. H. Norcross, for appellant. A. E. Cheney and E. D. Vanderleith, for respondent.

BELKNAP, J. Appeal from an order sustaining a demurrer and from the judgment entered thereupon. The complaint, in substance, alleged: That defendant, during the times mentioned, was the sheriff of Washoe county. That plaintiff, during the same period, was the owner of 6,000 head of sheep pasturing in Washoe county. That defendant demanded the sum of $300 of plaintiff as a license tax, as such owner. That plaintiff notified defendant that he was the owner of 5,396 acres of land in the state of Nevada, notwithstanding which defendant threatened to enforce his demand by process of law, unless plaintiff paid the license demanded; whereupon plaintiff, in order to avoid the detention of his sheep, agreed to and did deposit with defendant the sum of $300, to be retained by him according to the terms of the following receipt: "Reno, Nevada, April 11, 1899. Received of A. Inda three hundred dollars ($300) on deposit, until it is settled that said A. Inda is not liable for a license on sheep, and, in case he is entitled to run his sheep in Washoe county, the money is to be returned to him. W. H. McInnis, Sheriff of Washoe County." That defendant retains the money for a license upon the sheep mentioned, and refuses to return any portion of it to plaintiff. That a license tax upon plaintiff on account of herding, grazing, pasturing,

or owning sheep is without authority of law and void. Defendant demurred to the complaint, on the grounds that it did not state facts sufficient to constitute a cause of action. and that the court had no jurisdiction thereof.

Plaintiff should have averred in his complaint that the contingency mentioned in the receipt from the defendant had occurred. This is in the nature of a condition precedent, and must be averred in an action upon the contract. Counsel for appellant admit that this is the general rule, but claim that it is not applicable in this case because of the averments of ownership in plaintiff of 5,396 acres of land in the state, and that the license tax on sheep is illegal. But the obligation of defendant is to return the money when "it is settled that plaintiff is not liable for a license tax on sheep." Defendant is liable only upon the terms of his contract, and, if the contingency has not transpired, the action cannot be maintained. To hold otherwise would be to substitute an obligation for the defendant different from that which he has himself made.

The demand, exclusive of interest, does not exceed $300, and prima facie the justice court had jurisdiction; but it is claimed the legality of a tax is involved, and for this reason that the case was properly brought in the district court. The receipt upon which the action was brought states that the money was deposited "until it is settled" that said Inda is not liable for a license on sheep, and, in case he is entitled to run his sheep in Washoe county, the money is to be returned to him. We are not advised by the complaint whether or not proceedings have been instituted for the purpose of settling these differences, but they should be settled in that action, and not in this one. The complaint in this case attempts to state a cause of action for money had and received for plaintiff's use, and is not aided by immaterial averments as to the illegality of a tax. The order and judgment are affirmed.

BONNIFIELD, C. J., and MASSEY, J., con

cur.

(25 Nev. 229)

PACIFIC STATES SAVINGS, LOAN & BUILDING CO. v. FOX. (No. 1,570.)

(Supreme Court of Nevada. Nov. 28, 1899.) EXECUTORS AND ADMINISTRATORS-CLAIM

AGAINST ESTATE-TIME FOR
PRESENTATION.

A claim against an estate of a decedent may be filed after the expiration of the statutory time for the publication of the notice to creditors barring unpresented claims, where, as provided by St. 1899, pp. 110, 111. § 108, it appears by affidavit of the claimant that he had no notice, as the publication of such notice is not

summons.

Appeal from district court, Ormsby county; C. E. Mack, Judge.

Petition by the Pacific States Savings, Loan & Building Company for leave to file its claim against the estate of John G. Fox, deceased, after the expiration of the statutory time barring unpresented claims. From an order allowing the claim to be filed, Sarah J. Fox, as administratrix, appeals. Affirmed.

Alfred Chartz, for appellant. Samuel Platt, for respondent.

BELKNAP, J. Respondent, a corporation created by the laws of the state of California, petitioned the district court to file its claim against the estate of decedent after the expiration of the statutory time for the publication of the notice to creditors barring unpresented claims, upon the ground that it had no notice of the appointment of appellant as administratrix, and that the final account had not been filed. Affidavits in support of the motion were also filed, and upon the showing made an order was entered allowing respondent to file its claim. The administratrix appeals from the order, claiming that the publication of the statutory notice to creditors of her appointment, and giv-. ing them three months in which to present their claims, was summons, and, as the petitioner is a California corporation with no agent in this state upon whom process could be served, the secretary of state, under the statute of 1889 (St. 1889, p. 47), was its agent for that purpose, and the publication of the summons was service upon him, and is conclusive upon the question of notice. The act to regulate the settlement of estates of deceased persons, as amended at the session of 1899, and under which the court acted, provides:

"Sec. 107. Every executor or administrator shall immediately after his appointment cause to be published in some newspaper published in the county, if there be one, if not, then in such newspaper as may be designated by the court or judge, and post copies thereof in three public places of the county, a notice of his appointment as such executor or administrator. Such notice shall be properly entitled of court and cause, specifying the date of appointment, the name of deceased, and shall be dated and officially signed by the executor or administrator, and shall direct that all persons having claims against the estate are required to file the same with the proper vouchers and statutory affidavits attached, with the clerk of the court within three months from the date of the first publication of the notice. Such notice shall be published for at least once a week for four weeks. After the notice shall have been given as above required, a copy thereof with the affidavit of publication and posting, shall be filed.

"Sec. 108. All persons having claims against the deceased must within three months after the first publication of the notice specified in the preceding section, file the same with the necessary vouchers with the clerk of the

court, who shall file and register each claim. If a claim be not filed with the clerk within three months after the first publication of said notice, it shall be forever barred: provided, that when it shall be made to appear by the affidavit of the claimant, or by other proof, that he had no notice, as provided in this act, to the satisfaction of the court or judge, it may be filed at any time before the filing of the final account." St. 1899, pp. 110, 111.

In considering the question whether the notice mentioned in the above sections is summons or not, we must not overlook the provisions of section 108, to the effect "that, when it shall be made to appear by the affidavit of the claimant or other proof that he had no notice," the court may order his claim filed. This provision violates no constitutional requirement, and requires no judicial construction. We are not at liberty to evade plainly-expressed language, and must enforce the provision according to its terms. If the contentions of appellant are to prevail, no relief could be given under section 108, for the publication of the notice itself would give the claimant notice, and estop him from asserting the contrary. This would result in nullifying a beneficial provision, and creating contradictions not contemplated by the legislature. Upon the merits, the order is fully supported by the proofs, and is affirmed.

BONNIFIELD, C. J., and MASSEY, J.,

concur.

(36 Or. 178)

STATE ex rel. BELL v. FRAZIER, Sheriff. (Supreme Court of Oregon. Nov. 20, 1899.) STATUTES-EXPRESSION OF SUBJECT IN TITLE -CONSTITUTIONAL LAW-REGULATING PRACTICE IN COURTS-ASSESSMENT AND COLLECTION OF TAXES-PRIVILEGES AND IMMUNITIES.

1. Act Feb. 18, 1899 (Laws 1899, p. 140), entitled "An act providing for the payment of certain fees to the recorders of conveyances, clerks of the circuit courts and county courts in the state and to sheriffs in certain counties, and for the payment of trial fees, and providing for the payment to the state and several counties of sums of money and fees paid to said officers by parties litigant and others; and providing for the manner of payment of salaries of county officers," provides that the sheriff in all counties of the state containing more than 50,000 inhabitants shall exact, for the use of the county, in all civil actions, certain fees and charges; that the clerks of the circuit and county courts, at the commencement of any action or probate proceeding, shall exact from plaintiff or moving party certain sums, and shall exact from the defendant, at the time of filing an answer or motion, certain sums, and shall exact from the plaintiff, when the action comes on for trial, a certain sum; that the clerks of the circuit and county courts, sheriff, recorder of conveyances, and justices of the peace in counties of more than 50,000 inhabitants shall keep a fee book, in which shall be kept a record of the fees charged, etc.; that the sums collected shall be deposited with the county treasurer; that the salaries of all county officers shall be paid out of the county fund; and that none of the provisions of the act shall apply to counties containing less

than 50,000 inhabitants. Held, that the subjectmatter of the act is sufficiently expressed in the title, though the title indicates that the act is to apply to the whole state, while in the body it is limited to counties containing more than 50,000 inhabitants; and hence the act is not in violation of Const. art. 4, § 20, declaring that every act shall embrace but one subject, and matter properly connected therewith, which shall be expressed in the title.

2. Such act is not an act to regulate the practice in courts of justice, within the meaning of Const. art. 4, § 23, providing that the legislative assembly shall not pass special or local laws regulating the practice in courts of justice.

3. Such act is not an act providing for the assessment and collection of taxes for state, county, township, or road purposes, within the meaning of Const. art. 4, § 23, providing that the legislative assembly shall not pass special or local laws for the assessment and collection of taxes for state, county, township, or road purposes.

4. Such act does not grant to certain citizens privileges and immunities not belonging to all citizens, as it affects alike all persons under the same circumstances and conditions, and hence is not in violation of Const. art. 1, § 20, providing that no law shall be passed granting to any citizen or class of citizens privileges or immunities which, upon the same terms, shall not equally apply to all citizens.

Appeal from circuit court, Multnomah county; A. L. Frazer, Judge.

Proceeding by the state, on relation of R. F. Bell, against William Frazier, as sheriff of Multnomah county, for mandamus to compel defendant to serve a certain summons. There was a judgment for defendant, and relator appeals. Affirmed.

This is a mandamus proceeding to compel the sheriff of Multnomah county to serve a summons in an action brought by the relator against one Grimes in the circuit court of that county without the fees required by the act of February 18, 1899, being first paid (Laws 1899, p. 140), and the only question for consideration is the constitutionality of such act. Section 1 thereof provides that it shall be the duty of the sheriff, in all counties of the state containing more than 50,000 inhabitants, to exact, for the use of the county, in all civil suits, actions, or proceedings, certain fees and charges as set forth. Section 2 makes it the duty of the several clerks of the circuit and county courts of the state, at the time of the commencement of any suit, action, or proceeding for the enforcement of private rights, to exact from the plaintiff or moving party the sum of $10 in all cases where the amount in controversy exceeds $500, and $5 in all cases where the amount in controversy is less than that sum, except in probate proceedings, when $10 shall be required to be paid before the filing of any petition therein; and no complaint, transcript on appeal, petition for writ of review, or any of the instances in probate proceedings mentioned, shall be filed until such payment has been made. The clerks are also required, at the time of filing any answer, demurrer, or motion in any action, suit, or proceeding upon the part of a defendant, to exact from him the sum of $5 in all cases where the amount in controversy exceeds the sum of $500, and

$3 in all cases where the amount in controversy is $500 or less, except in probate proceedings, where he shall be required to pay the sum of $5. And they are further required to exact from the plaintiff or moving party, at the time the suit, action, contest, or proceeding comes on for final trial or hearing on questions of fact and law, when tried by the court, the sum of $2, which must be paid before any trial shall be had; and, in case of a jury trial, the sum of $12 a day for each and every day the jury shall be engaged in the trial, to be paid in advance each day before proceeding therewith. Section 3 provides a fee of 10 cents a folio for furnishing private parties a copy of the records and files in any of the county offices, which shall be paid into the county treasury as other fees are required to be paid. Section 4 provides that the sums required to be paid by the parties litigant to the clerks of the circuit and county courts and sheriff, as provided in the preceding sections, shall be in lieu of all the fees which the parties have heretofore been required to pay, and no other fees than those recited shall hereafter be exacted from the parties to any action, suit, or proceeding. Section 5 makes it the duty of the clerks of the circuit and county courts, sheriff, recorder of conveyances, and justices of the peace in counties of more than 50,000 inhabitants to keep a fee book, in which shall be entered all items of service performed, and fees, percentages, commissions, charges, etc., which shall be a public record; and each of such officers is required on or before the 1st day of each month to deposit with the county treasurer all sums collected during the previous month, taking his receipt therefor. Section 6 makes it the duty of the county auditor to check up the sums collected by the several county officers and deposited with the treasurer, and make a report of his findings to the board of county commissioners on the 1st day of each month, and before the salaries of such officers are paid. Section 7 provides that the salaries of all county officers shall be paid by warrant drawn on the county fund in pursuance of an order of the board of county commissioners, the same as other claims are paid, and that they shall receive no other compensation for their services; and provides further that none of the provisions of the act shall apply to counties containing less than 50,000 inhabitants. Section 8 repeals all laws and parts of laws in conflict therewith, and contains an emergency clause. The circuit court sustained a demurrer to the alternative writ, holding the act to be constitutional, and hence this appeal.

Sanderson Reed, for appellant. O. F. Paxton, for respondent.

BEAN, J. (after stating the facts). The contention for the plaintiff is that the act is void, because (1) the title does not express the subject thereof, and therefore contravenes section 20, art. 4, of the constitution;

(2) it is a local law, regulating the practice in courts of justice, and providing for the assessment and collection of taxes for state and county purposes, and is void under section 23, art. 4, of the constitution; and (3) it is a law granting to certain citizens privileges and immunities not belonging to all citizens, and is, therefore, violative of section 20, art. 1, of the constitution. Of these objections in the order named. It is entitled "An act providing for the payment of certain fees to the recorders of conveyances, clerks of the circuit courts and county courts in the state and to sheriffs in certain counties, and for the payment of trial fees, and providing for the payment to the state and several counties of sums of money and fees paid to said officers by parties litigant and others; and providing for the manner of payment of salaries of county officers," which, in our opinion, sufficiently express the purpose and subject-matter of the law within the doctrine of the previous decisions of this court. O'Keefe v. Weber, 14 Or. 55, 12 Pac. 74; David v. Water Committee, 14 Or. 98, 12 Pac. 174; State v. Shaw, 22 Or. 287, 29 Pac. 1028; State v. Koshland, 25 Or. 178, 35 Pac. 32; State v. Linn Co., 25 Or. 503, 36 Pac. 297; Northern Counties Trust v. Sears, 30 Or. 388, 41 Pac. 931, 35 L. R. A. 188. It has been repeatedly held that the section of the constitution here invoked is not directed against the generality or comprehensiveness of the title of legislative enactments, nor does it require that such title shall index the details thereof. If all the provisions of the law relate, directly or indirectly, to the same subject, and are not foreign to the subject expressed in the title, it will not be held unconstitutional. The object of the constitutional provision is to prevent the blending of incongruous subjects in the same act, using the title as a deception, and to prevent combining subjects representing divers interests in one act in order to unite the members of the legislature who favor either in support of all. There has been a general disposition manifested in the cases cited to construe the constitution liberally, rather than to embarrass legislation by a strict construction. The contention in this particular case seems to be that the title of the act is general, and indicates that it was intended to apply to the whole state, while in the body it is limited to the class of counties containing more than 50,000 inhabitants, and therefore the subject is not properly expressed in the title, because it does not indicate the limit of the operation of the act. A question quite similar to this was considered and decided adversely to plaintiff's contention in Neuendorff v. Duryea, 69 N. Y. 557. The constitution of New York at that time provided that "no local bill which may be passed by the legislature shall embrace more than one subject, and that shall be expressed in the title." Article 3, § 16. The legislative assembly passed an act prohibiting public dramatic entertainments on

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Sunday in the city of New York alone, the title of which was "An act to preserve the public peace and order on the first day of the week, commonly called Sunday." It was contended that it was void, because local, while the title indicated that it was a general act. But the court held that, although it was a local law, the objection was not well taken, and in deciding the case said: "The title of the act is, 'An act to preserve the public peace and order on the first day of the week, commonly called Sunday.' It will be seen that it is broad enough in its language to apply to the whole state. This, however, is not enough, alone, to determine that it is improper. If it meets the conceded purpose of the constitution, it is correct. People v. Briggs, 50 N. Y. 553. That purpose has been repeatedly declared to be: First, to prevent the union in one title of several local projects, or the attaching of some local proj. ect to a general subject, or vice versa; and, second, by the title to give information to all concerned in the subject of the act that that subject is likely to be affected by pending legislation. It is plain that the first part of this purpose is met. There is in this act but one local subject. Is not the second part also met? The title is broad enough to indicate legislation in regard to the public peace and order on Sunday throughout the state. Hence it gave information to the people in New York City, and to their representatives in the legislature, that that locality was interested in the proposed enactment. The constitution seeks an end. The solicitude of it is not how it is reached; and any method which attains that end satisfies the constitution, which prescribes no form. The constitutional purpose was not to insure that there should be no legislation discriminating for or against any locality. It was to insure that such legislation should not be had without that locality being apprised of the intention so to legislate, with opportunity to urge or oppose. If the title of the bill be so general as to indicate to every portion of the state that possibly it may be brought within the scope of the law, that purpose is effected; so that, though the act deals with New York City alone, and the title indicates the whole state, the dwellers in New York City were apprised that there was a law proposed which might affect them." We are of the opinion, therefore, that the act under consideration is not violative of section 20, art. 4, of the constitution.

It is next contended that the statute under consideration is a local law regulating the practice in courts of justice, and providing for the assessment and collection of taxes, and is, therefore, void, under section 23, art. 4, of the constitution, which provides that: "The legislative assembly shall not pass special or local laws in any of the following enumerated cases, that is to say: (3) Regulating the practice in courts of justice; (10) for the assessment and collection of taxes

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for state, county, township, or road purpos es." At the threshold of this objection the plaintiff is met with the contention that the act is a general, and not a special or local, law, and for this reason does not come within the section of the constitution referred to. But, as we are satisfied it is neither a law regulating the practice in courts of justice nor providing for the assessment and collection of taxes for state, county, township, or road purposes, this contention is immaterial for the purposes of the case. It is difficult to lay down any rule by which it may be determined whether a given statute is an act regulating the practice in courts of justice or not. According to Mr. Bouvier, and adopted by Webster, "Practice is the form, manner, and order of conducting and carrying on suits or prosecutions in courts through their various stages, according to the principles of law and the rules laid down by the respective courts." 2 Bouv. Dict. p. 357. And this definition is adopted in the American and English Encyclopædia of Law (volume 19, page 1), and also in Butler v. Young, 1 Flip. 276, Fed. Cas. No. 2,245; Bowlus v. Brier, 87 Ind. 391. The act under consideration can in no sense be said to regulate the practice in courts of justice, within this rule. It prescribes no new or other or different form of procedure or manner of conducting suits or actions in the class of counties containing 50,000 inhabitants than in the other counties of the state. It does not in any way change or affect the practice or procedure in any court. The practice in a court is the manner or order in which the proceedings are had and the business of the court transacted, and the law providing the fees which shall be paid by litigants as a condition precedent to their right to invoke the aid of the court manifestly does not affect or regulate the practice. The statutes of the United States provide that the practice in civil causes other than equity and admiralty cases in the circuit and district courts of the United States shall conform as near as may be to the practice existing at the time in the courts of record of the state in which such circuit and district courts are held. The laws of Illinois provided that a judge in charging a jury should instruct them only as to the law of the case. The judge of the United States circuit court for Illinois refused to be bound by the state statute, and charged the jury upon the facts in the case; and the supreme court of the United States (Nudd v. Burrows, 91 U. S. 426, 23 L. Ed. 286) held that the charging of a jury by the judge was not a matter of practice within the meaning of the federal statutes. In our judgment, therefore, the act in question is not one regulating the practice in courts of justice. Nor is it an act for the assessment and collection of taxes for state, county, township, or road purposes, within the meaning of this section of the constitution. The terms "assessment" and "taxation" are often used in a sense co-extensive with the sovereign power under which the

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