determined by the status of the lands at the time of the actual taking. Such taking might be evidenced by staking it off and marking it on the grounds, or by fencing it or constructing buildings on it, or in any other manner that is ordinarily recognized by the law as amounting to an actual possession of real estate. In the case at bar, there was not even a station at Meridian at the time the pre-emptioner filed on this land. The company did not take possession of the ground in any manner, nor did it do any act that evidenced its intention of claiming station grounds, nor did it make any claim to this ground for seventeen years thereafter. It is apparent to me at once from the state of facts in this case that a grave and serious injustice and inequity will be done the entryman on this land if the railroad company is permitted at this late date to take 20 acres out of his land as claimed by the company. It is an admitted fact in the case that the pre-emptor filed on the land, paid for it, and received his patent in absolute and total ignorance of any claim by the railroad company, and he and his grantees continued in possession of the land for some 17 years thereafter without the company asserting any right or claim to the station grounds or attempting to take possession thereof, and yet, in the face of that state of facts, it is proposed to oust him of his possession and give this land to the railroad company. I decline to sanction a judgment that will have that effect. I am wholly unable to find a decision from any court that either supports or upholds the doctrine laid down in the majority opinion when it comes to station or depot grounds. The confusion has, in my judgment, arisen in this case in an attempt to apply the law and decisions with reference to rights of way to station and depot grounds.

If it should be admitted, on the other hand, that the grant for station grounds may be definitely located and segregated in the same method as is provided for rights of way, namely, by filing a profile map of definite location, still it would seem that in cases where possession has not been actually taken title does not pass until after the notation on the land office plats. It will be noticed that section 4 of the act of 1875 requires the claimant to file with the register of the land office a profile of its road, and upon approval thereof by the Secretary of the Interior, and a notation thereof on the plats of the land office, that "thereafter" all lands over which such right of way shall pass shall be disposed of subject to such right of way. Conceding, now, that there is no necessity for a plat where the company has taken actual possession and constructed its road or station buildings, we are then reduced to the proposition that the profile map only serves the purpose of reserving the lands belonging to the United States at the time the acts required in section 4 are performed from the operation of the public land laws.

In other words, it protects the company for the period of five years by giving a constructive notice which takes the place of actual occupation, and reserves all rights to the company for that period of time. With this in view, we must read section 4 to ascertain what acts the word "thereafter" refers to. We are naturally led to the question: Does it refer to the act of filing the profile map with the register of the land office, or does it refer to the act of approval by the Secretary of the Interior, or does it apply to the act of making the notation on the plats of the land office, or does it apply to any two of those acts, or does it apply to all of those acts? I submit that, by every rule applicable to the construction of the English language, it must necessarily refer to all the acts previously enumerated, and means that after the performance of those acts the rights claimed shall be reserved to the company, and that all the lands in which such rights have been acquired, by performance of all the acts therein enumerated, shall be "thereafter" granted subject to such rights. This view is clearly indicated in the case of Noble v. Union River Logging Ry. Co., 147 U. S. 165, 13 Sup. Ct. 271, 37 L. Ed. 123, quoted from in the majority opinion. In that case the statement of facts was prepared by the same justice (Brown) who wrote the opinion. In making that statement he said: "In January, 1889, the company, desiring to avail itself of Act Cong. March 3, 1875 (18 Stat. 482, c. 152 [U. S. Comp. St. 1901, p. 1568]), granting to railroads a right of way through the public lands of the United States, filed with the register of the land office at Seattle a copy of its articles of incorporation, a copy of the territorial law under which the company was organized, and the other documents required by the act, together with a map showing the termini of the road, its length, and its route through the public lands according to the public surveys. These papers were transmitted by the Commissioner of the Land Office, and by him to the Secre tary of the Interior, by whom they were approved in writing, and ordered to be filed. They were accordingly filed at once, and the plaintiff notified thereof." It should be observed that in this statement of facts the learned justice refers to the profile required to be filed under section 4 of the act as a "map," and to all the documents used in connection therewith as the "papers." Keeping this in mind, let us note the language used in the opinion itself. In speaking of the action of the Secretary of the Interior, the writer of the opinion enumerated all the acts required by section 4 of the act of 1875, and then adds that, when these things were done, the granting act became operative. His language is: "Upon being satisfied of this fact, and that all the other requirements of the act had been observed, he was authorized to approve the profile of the road, and to cause such approval to be noted upon the

plats in the land office for the district where such land was located. When this was done, the granting section of the act became operative, and vested in the railroad company a right of way through the public lands to the extent of 100 feet on each side of the central line of the road. Frasher v. O'Connor, 115 U. S. 102, 5 Sup. Ct. 1141, 29 L. Ed. 311." There the court indicated that all these acts are conditions precedent.

Further considering the power of the Secretary to act in the premises and the time when the rights of the railroad company became vested, the opinion says: "The lands over which the right of way was granted were public lands subject to the operation of the statute, and the question whether the plaintiff was entitled to the benefit of the grant was one which it was competent for the Secretary of the Interior to decide, and when decided, and his approval was noted on the plats, the first section of the act vested the right of way in the railroad company." See, also, Red River, etc., R. Co. v. Sture, 32 Minn. 95, 20 N. W. 230. Dakota Central R. R. Co. v. Downey, 8 Land Dec. Dep. Int. 115, instead of supporting the contention made by the majority of the court, is, to my mind, against its conclusion. That was a case where the railroad had already been constructed before the entryman filed upon his land, and the Secretary held that it was unnecessary in such case for the company to file its map, or have any notation made on the land office plats. As heretofore suggested, the authorities are all one way on that question. In the course of that opinion the Secretary states what must be done where an attempt is made to reserve the land prior to the construction of the road, and uses the following language: "The cases in which notes are to be made on the entries of public lands are those of entries made before the construction of the road, for the purpose of excepting the grant to the railroad company, thus made upon the condition that the road shall be completed within five years, or the grant shall be forfeited." Neither is the case of Van Wyck v. Knovals, 106 U. S. 360, 1 Sup. Ct. 336, 27 L. Ed. 201, in point. That case considered the act of Congress of July 23, 1866, granting a right of way to the St. Joe & Denver City Railroad Company, and also granting to the state of Kansas, for the benefit of that road, the alternate sections of land within 10 miles of the line of such road. The language of that act is entirely different from the act of March 3, 1875, and the distinction has been pointed out between the two acts in many decisions since that time wherein the Van Wyck Case has been considered and distinguished. See 10 notes on U. S. Reps. 391.

It is suggested by the majority opinion that the act of March 3, 1875, is ambiguous in reference to station and depot grounds. If that be true, the majority of the court have evidently reversed the rule which re

quires a strict construction against a donee or grantee of the United States and in favor of the grantor. In this case, after the government had, as the railroad company claims, parted with its title to this easement, it conveyed the entire title without reservation to the pre-emptor. Now, under the rule, if there is the slightest doubt as to whether the government parted with any title upon the railroad company's application for station grounds, that doubt should be resolved in favor of the government and of its right to subsequently grant the title free of the servitude claimed by the railroad company. In Wiggins Ferry Co. v. E. St. Louis, 107 U. S. 371, 2 Sup. Ct. 261, 27 L. Ed. 419, the Supreme Court of the United States said: "It is a rule of interpretation that every grant from the sovereign authority is, in case of ambiguity, to be construed strictly against the grantee and in favor of the government." In United States v. Michigan, 190 U. S. 401, 23 Sup. Ct. 749, 47 L. Ed. 1103, the Supreme Court, speaking through Mr. Justice Peckham, reiterated the same doctrine, and, among other things, said: "Any ambiguity must operate against the grantee in favor of the public. This rule of construction obtains in grants from the United States to states or corporations in aid of the construction of public works." It seems to me that my associates erred when they attempted to apply to this case the rule applicable to a purchaser of land where he deposits his deed with the recorder, and that officer fails to duly record the deed within the proper time. There is no question about that doctrine, and I take it no one would seriously contend that a purchaser of land would lose his property or be devested of his title by reason of the failure of the recorder to record the deed; but there is no analogy between that case and the case at bar, nor is the same principle necessary or applicable to attain the ends of justice. In this case the government says to the railroad company: "We will give you certain public lands and rights that now belong to the United States; but, before you can be vested with that right, and entitled to its enjoyment, you shall do certain things, and the officer of the grantor, the government, shall also do certain things." Until all those acts are performed, the grantee acquires nothing, and therefore has nothing to lose or forfeit. It is true, as stated in the original opinion, the performance of the first act creates an inchoate right which the railroad company may either mature into a vested right or it may allow it to lapse. It may never pursue its right to the extent of acquiring a property right therein either as against the government or subsequent settlers or purchasers. It is one thing to have a valuable right already acquired for which a consideration has been given, and lose that right on account of the negligence or failure to act on the part of a public official, but quite another thing to have a prospective, conditioned, or

anticipative right, the acquisition of which is dependent upon certain acts to be done by a public official, and which acts are never done by him. In the latter case the failure to discharge those acts does not deprive the company of any property right because it had not yet acquired any property right. In such case its prospects and anticipations never ripened into a legal right. It is merely a failure to vest the property right he is attempting to acquire. In this case the railroad company has parted with no consideration, and is purely a donee, as distinguished from a purchaser, of whatever rights it has acquired. On the other hand, the pre-emptor is a purchaser for value, and has parted with a consideration for the property.

I am forced to the conclusion: (1) That the railroad company in this case should be bound by the status and condition of the land as it found it at the time it sought to take the station grounds, and that the attempt to take occurred when it asserted its claim to the grounds for such purpose and attempted to take actual possession thereof. (2) That at the time the company sought to take the ground it was no longer public lands of the United States, but was the private property of the defendant. (3) That if it were conceded that the act of Congress authorizes a constructive taking and segregation of depot and station grounds that in the case at bar the acts necessary to complete that constructive taking and appropriation within the provisions of the act were never completed, in that the reservation was never made upon the land office plats, and consequently no notice thereof was ever given by either the company or the government to subsequent purchasers and entrymen. (4) That the government never recognized the acts of the railroad company as amounting to an appropriation and segregation of station grounds, for the reason that it thereafter granted the land in fee simple to the defendant's predecessor without any reservation whatever and free from the company's alleged servitude.

For the foregoing reasons, I am convinced that the judgment of this court as originally announced should stand, and I accordingly dissent from the views expressed by the majority of the court on this hearing.

(30 Nev. 225)

STATE ex rel. WILLIAMS v. SECOND JUDICIAL DISTRICT COURT IN AND FOR CHURCHILL COUNTY et al. (No. 1,746.) (Supreme Court of Nevada. March 2, 1908.) CONSTITUTIONAL LAW-DELEGATION OF LEGISLATIVE POWER TO JUDICIARY.

Const. art. 3, § 1, divides the government of the state into the legislative, executive, and judicial departments, and provides that no powers belonging to one of these departments shall be exercised by either of the others, except in the cases expressly directed or permitted. Article 8, § 1, provides that the Legislature shall pass no special act relating to corporate pow

ers, except for municipal purposes. Article 8, §8, directs that the Legislature shall provide for the organization of cities and towns by general laws. Act March 27, 1907 (St. 1907, p. 241, c. 125), relates to the incorporation of cities; section 2 providing for a petition for such corporation by the majority of the qualified voters, and section 3 (page 242) conferring on the district court authority to determine whether a majority of the qualified electors and taxpayers have made their application sufficiently describing the territory to be embraced in the city or corporate town with a map thereof surveyed, and containing the streets and alleys and the proposed name, and whether it is accompanied with satisfactory proof of the number of inhabitants. Held, that such act is not unconstitutional as delegating legislative powers to the judicial department.

[Ed. Note. For cases in point, see Cent. Dig. vol. 10, Constitutional Law, §§ 103-107.]

Application for writ of prohibition by the state of Nevada, on the relation of Warren Williams, against the Second judicial district court of Nevada in and for Churchill county and John S. Orr and W. H. A. Pike, judges of said court. Writ denied.

E. L. Williams, for relator. Wm. S. Wall, for respondents.

TALBOT, C. J. This is an application for a writ of prohibition to restrain respondents from entering a decree declaring the town of Fallon duly incorporated, designating its classification, or appointing commissioners for calling an election of officers for the town under "An act providing for the incorporation of cities, their classification, the establishment and alteration of their boundaries, the government and disincorporation thereof, and repealing all acts and parts of acts in conflict therewith," approved March 27, 1907. St. 1907, p. 241, c. 125. It is admitted that compliance has been made with section 2 of the act, which provides: "Whenever a majority of the qualified electors who are taxpayers within the limits of the city or town proposed to be incorporated, as shown by the last official registration lists and assessment roll, not embraced within the limits of any city or incorporated town shall desire to be organized into a city or incorporated town, they may apply in writing to the district court of the proper county, which application shall describe the territory to be embraced in such city or incorporated town, and shall have annexed thereto an accurate map or plat thereof, duly surveyed and containing the streets and alleys, and state the name proposed for such city or incorporated town, and shall be accompanied with satisfactory proof of the number of inhabitants within the territory embraced in said limits, for purposes of classification under the provisions of this act." It is sought to prevent respondents from proceeding under section 3 of the act, the fore part of which directs: "When such application shall be made as aforesaid the court, being satisfied of its legal sufficiency, shall thereupon enter a decree declaring said city or town duly incorporated under the

conferred on the district court are judicial rather than legislative, and are properly delegated.

In a Tennessee case relied upon by relator (State v. Armstrong, 3 Sneed, 634), decided in 1856, "An act to authorize the formation of companies, and regulate private and local affairs and to retrench the expenses of legislation" (Acts 1855-56, p. 514, c. 254), which conferred upon the circuit courts the power to grant charters and corporations upon the conditions therein prescribed, except for banking purposes, was held unconstitutional as attempting to delegate legislative power which could not be conferred. It was said in the opinion that the act was designed, as manifested from the purposes avowed in the bill, as well as from the express terms of the first section, as an unqualified transfer of the exercise of the power to grant corporate privileges from the Legislature to the courts, and probably was intended to exhaust the power of the Legislature in respect at least to all such corporations as were within the purview of the act. That case is readily distinguishable from the one now before us and from the later one in that state (Mayor v. Shelton, 1 Head, 24), in which it was held not to apply to an act similar in principle to ours, and in which it was said: "This statute establishes a general and complete system of municipal government for towns, cities, and villages, and provides

the mode by which the inhabitants of any particular town may adopt and organize under it. They shall apply by petition to the county court, setting forth their desire to avail themselves of its privileges, with a description by metes and bounds of the limits of their town, which shall be spread upon the minutes of the court and registered in the register's office. The objection taken is that the power to grant charters of incorporation is vested alone in the Legislature, and cannot be delegated to the courts, or any other authority. But

then the question arises: Has it been delegated by this act? We think very clearly not. The doubt upon this subject has, as it seems, grown out of a misconception of the case of State v. Armstrong. That case was correctly decided beyond all question. It was upon Acts 1855-56, p. 514, c. 254, by which the full and broad power to create corporations was given to the circuit courts, and was therefore held to be in violation of the Constitution. Not so in this act. It gives the county court no power on the subject but to record the petition for the benefit of a perfect and complete charter, and designates the boundaries to which it is to apply; that is, to prescribe the corporate limits of their town. It cannot add to or diminish the powers, privileges, and immunities granted, nor make the least change of any kind in the charter. The legislative will is fully declared in the act, and nothing is left to the court but to locate and apply

it to any community who may petition for it, and bring themselves within its provisions." In a number of cases, including People v. Fleming, 10 Colo. 553, 16 Pac. 298 (1887), City of Wahoo v. Dickinson, 23 Neb. 430, 36 N. W. 813 (1888), and Young v. Salt Lake City, 24 Utah, 321, 67 Pac. 1068 (1902), the courts have considered and declined to follow People ex rel. Shumway v. Bennett, 29 Mich. 451, 18 Am. Rep. 107 (1874), relied upon by relator. In Young v. Salt Lake City the Supreme Court of Utah cited a num. ber of conflicting cases regarding the question involved, and sustained the statute of that state conferring power upon the district court. It was said that it is a judicial act to determine what the facts in a given case are, and whether such facts, when found, entitle the parties to the relief sought, and it was held, as has been done at different times by this court, that, when a reasonable doubt exists as to the constitutionality of a law, it will be upheld. In Re Town of Union Mines, 39 W. Va. 179, 19 S. E. 398 (1894), and in Elder v. Incorporators of Central City, 40 W. Va. 222, 21 S. E. 738 (1895), it was held that a section of the Code in re lation to incorporation of cities, towns, and villages, in so far as it conferred on the cir cuit court functions in their nature judicial and administrative, although in furtherance of the power of the legislative department of the state government, was constitutional and valid. In City of Burlington v. Leebrick, 43 Iowa, 258 (1860), the court said: "The Legislature has passed a general statute de claring that territory to which certain conditions belong may be annexed to an incorporated city. The right to annex it depends upon the existence of the conditions. The Legislature might have referred the question of the existence of these conditions to the board of supervisors, or might have created a special tribunal for its determination; but the question, by whomsoever determined, involves the examination and weighing of testimony, and partakes of the nature of a judicial act. It is not the sole province of courts to determine 'what the existing law is in relation to some existing thing already done or happened.' It is as much a judicial act to determine what are the facts of a particular case, and whether they bring the case within the operation of a recognized principle of the existing law." In Morton v. Woodford, 99 Ky. 367, 35 S. W. 1112 (1896), the court stated: "Article 8, c. 89, Ky. St., confers upon circuit courts the power, under certain conditions, to establish towns, and provides that no. appeal shall lie from the judgment. We think the power so conferred on the circuit courts is constitutional. * * The Constitution prohibits local legislation. Hence some department of government must of necessity be invested with power and authority to establish towns, and it seems to us that the circuit courts are proper tribunals to be invested