State ex rel. Jennett v. Stevens

Per Curiam: This is an original proceeding in mandamus to compel the respondent, as trustee of the Goldfield townsite, to execute and deliver to plaintiff a deed to a certain lot — 138 — within said townsite upon the payment of the sum of $1.50, or a sum not greater than $4.50, which latter amount is alleged to have been tendered by the petitioner to the respondent. Prior to January 1, 1911, the respondent was one of the two district judges of the Seventh Judicial District. By virtue of his office as such judge, he became trustee of the federal townsite of Goldfield, and in pursuance of law (Comp. Laws, 347) continued to execute the duties of such trustee after the expiration of his term of office. A number of questions have been raised involving the right of the petitioner to maintain this proceeding, but the importance of the question involved warrants a determination of the main question in controversy, even though the writ might be denied upon other grounds. The main question upon the merits is the amount the respondent, as trustee of the townsite, is entitled to charge claimants for lots within the townsite. Section 7 of "An act prescribing rules and regulations for the execution of the trust arising under the act of Congress entitled 'An act for the relief of the inhabitants of cities and towns upon the public lands, ’ approved March 2, 1867, ” approved February 20, 1869, as amended March 8, 1871, reads as follows: "Sec. 7. After the issuance of the patent for such lands, it shall be the duty of the corporate authorities, or judge to whom such patent shall issue to make out, execute and deliver, to each person, company, association or corporation who may be legally entitled to the same, a deed in fee simple, for such part or parts, lot or lots, of land on payment of his, her, their or its proper and due proportion of the purchase money for such land, together with his, her, their, or its proportion of such sum, as may be necessary, to pay for streets, alleys, squares and public grounds, not to exceed fifty cents for each lot, and also such further sums, as shall be a reasonable compensation for executing and acknowledging such deed not exceeding the sum of three dollars for the first and one dollar for each additional lot claimed by the same owner; — 139 — for counsel fee and for moneys expended in the acquisition of the title and the administration of the trust, including reasonable charges for time and services while employed in such trust, not exceeding the sum of one dollar for each lot; provided, that, no estimate shall be made for counsel fee unless the same shall have been actually and necessarily expended; and the foregoing charges shall be full payment for all expenses attending the execution except for revenue stamps; provided, that, deeds made under the provisions of this act, for the benefit of minors and insane persons, shall be to the guardian or trustee of such minor, or insane person, as the case may be, in trust for such minor or insane person.” (Comp. Laws, 345.) Section 5 of the amendatory act of March 8,1871 (Comp. Laws, 349), reads as follows: "In all cases where it shall become necessary in the opinion of the citizens of the town to make a survey of any townsite for the purpose of identifying or locating the lots, blocks, squares, streets, or alleys contained within the limits of said townsite, a fee of_cents for each lot shall be paid to the trustee to defray the expenses of said survey, which said fee shall be paid by the claimants pro rata. ” The two sections above quoted prescribe the amounts which the trustee may charge the lot claimants for lots within the townsite, and it is upon a construction of the provisions of these two sections that the controversy arose which has occasioned this proceeding. The total amount which the trustee determined was the proper and lawful charge to be made for each lot within the town-site was $9.50, which amount included the item of $1.12 as a pro rata charge for the survey of the townsite as provided for in section 5, supra. It is the contention of counsel for petitioner that the maximum charge which a trustee may make under the provisions of section 7, supra, is $4.50. The relator makes the further contention that the respondent herein is not entitied to make any charge for his personal services by reason of the fact that he became trustee by virtue of his judicial office, and that — 140 — he'is not entitled to make any charge for the survey of the townsite because of failure upon the part of the trustee, to ascertain the opinion of the citizens of the town that such survey was necessary. We agree with counsel for petitioner that $4.50 is the maximum charge per lot which a trustee may impose under the provisions of section 7, supra. Counsel for respondent contends that the limitation of 50 cents mentioned in the section only applies to the amount which may be apportioned per lot to pay for streets, alleys, squares, and public ground, and that an additional charge may be made for the land exclusive of that comprised within the streets, alleys, squares, etc. We think the words, "together with,” as used in the section show conclusively that the limitation of 50 cents was the maximum amount that could be apportioned to buy all the land within the townsite, inclusive of that included within the streets, alleys, squares, and public grounds. This is not only in accordance with the grammatical construction of the language used, but 50 cents per lot is ample to cover the charge for such purposes. While it is true that lots might. be made so large that 50 cents would not be an adequate allowance, yet, if lots are made in a convenient and somewhere near the ordinary size, the amount prescribed is ample. Where the government proceeds to lay out and dispose of a townsite under the provisions of the United States Revised Statutes, section 2882 (U. S. Comp. St. 1901, p. 1455), the maximum size of the lots is prescribed to be 4,200 square feet. A block 360 by 300 feet, allowing for alleys and streets of the ordinary size, would make twenty-four of such lots, approximately eight of such lots per acre. If all of the lots within the townsite were sold, it would net $4 per acre for the land which is purchased from the government at $1.25 per acre. It will therefore be seen that the lots could be made very much larger than the maximum permitted under the section of the federal statute, supra, besides making ample allowance for streets, alleys, — 141 — and public grounds, and still enable cities to keep within the prescribed limitation of 50 cents. It is contended by counsel for the petitioner that the maximum charge which the trustee may make for counsel fee for moneys expended in the acquisition of the title and for the administration of the trust, including reasonable charges for the trustee, is $1. It is the contention of counsel for respondent that the limitation of $1 only applies as a limitation upon the charges which the trustee may make for his time and services while employed in the administration of the trust. We think the section of the statute will not bear the construction contended for by counsel for the respondent. In quoting section 7, supra, we have followed the official copy as it appears in the enrolled bill. In printing the statute the printer has not followed the punctuation used in the original. The printed copy contains a comma after the words " for counsel fee, ” but there is no such comma in the original. The use of the word "including’7 shows, we think, that the charges for time and services of the trustee were intended to be embraced within the maximum charge of $1 for each lot, which was also to be inclusive of counsel fee and for moneys expended in the acquisition of the title and the administration of the trust. Ordinarily the sum of $1 would be ample to cover all of the purposes mentioned. The corporate townsite embraced 587 acres which was divisible into 4,000 or more lots. It was doubtless the purpose of the legislature to fix a maximum beyond which the trustee could not go, and at the same time make the same high enough for all ordinary purposes. Prior to the amendment of 1871, the maximum for this purpose was 50 cents per lot. It appears from the answer of the respondent that there was a great deal of litigation involved over the townsite between the citizens and persons claiming portions of the land under mining locations. The trustee allowed $3.45 per lot as a reasonable counsel fee. This may not have — 142 — been excessive for the services rendered, but the trustee is governed by the provisions of the statute, and, so far as he is concerned, a fee may not be paid which, together with moneys expended in the acquisition of the title and the administration of the trust and for reasonable charges for the services of the trustee, will exceed $1 per lot. This construction of the section we believe to be in accordance with the plain import of the language used. The contention of counsel for petitioner that the trustee is not entitled to impose any charge upon the lot claimants to defray the expenses of survey is not well taken, so far as anything appears in this proceeding. There is nothing in section 5, supra, or in the statute, providing a method for obtaining an expression of opinion upon the part of the citizens upon the question of the necessity for a survey. It is presumed that the trustee will do his duty, and that he will not cause a survey to be made contrary to the opinion of the citizens of the town. There must of necessity be a survey, and the town divided into lots, streets, alleys, public squares, etc. Whether or not former surveys made by several parties of different portions of land embraced within the townsite would be sufficient cannot be determined in this proceeding. Respondent has set up in his answer ample justification, we think, for making a survey. Accepting his allegations as true for the purposes of the statute, the presumption may properly be indulged in that the citizens of the town, seeking the benefits of the townsite statutes, favored whatever was necessary to carry out the purposes of such townsite. The petitioner not only has failed to make a showing that would warrant us in saying that the charge made by the trustee for the survey is illegal, but it appears that the only survey ever made of the lot here in question was that made by direction of the trustee. Petitioner, while relying on the survey, and claiming its benefits, will not be heard to question its validity. The contention of the petitioner that the trustee is not authorized to make any charge for services rendered by himself because of the fact that he became trustee of the — 143 — townsite by virtue of his office as district judge is without merit. The compensation allowed the trustee under the statute is not a fee or perquisite of the office of district judge, and hence does not come within the prohibition of section 10 of article 6 of the constitution, which forbids a judicial officer, other than justices of the peace or city recorders, from receiving to his own use any fees or perquisites of office. While the respondent became townsite trustee by virtue of his office as district judge, and while as such trustee certain of his duties were judicial in character and others ministerial, his trusteeship was at all times separate and distinct from his office as district judge. It is not an office within the meaning of the constitution which prohibits a judge from accepting any office other than a judicial office during the term for which he is elected. (People v. Nichols, 52 N. Y. 484, 11 Am. Rep. 734; In re Hathaway, 71 N. Y. 238; Underwood v. McDuffee, 15 Mich. 366, 93 Am. Dec. 194; Shurbun v. Hooper, 40 Mich. 504; U. S. v. Germaine, 99 U. S. 508, 25 L. Ed. 482; U. S. v. Hartwell, 6 Wall. 385, 18 L. Ed. 830; Louisville R. Co. v. Wilson, 138 U. S. 501, 11 Sup. Ct. 405, 34 L. Ed. 1023; Auffmordt v. Hedden, 137 U. S. 310, 11 Sup. Ct. 103, 34 L. Ed. 674; Bunn v. People, 45 Ill. 397; Hand v. Cook, 29 Nev. 518.) The duties, imposed by the trust do not naturally belong or pertain to the office of district judge, nor is it incumbent upon a district judge to accept such trust. There is nothing in the constitution forbidding a judge receiving compensation for such services, and it is well settled in principle that he may accept a compensation for such services. (Crosman v. Nightingill, 1 Nev. 323; State v. LaGrave, 23 Nev. 373; State v. Laughton, 19 Nev. 202; Love v. Baehr, 47 Cal. 364, and authorities cited, supra.) The petitioner sets out alleged irregularities on the part of the trustee in prematurely publishing the notice for applicants to present their claims. The statute provides that the trustee within ninety days after the receipt — 144 — of a patent for the townsite shall give public notice thereof by publication in a newspaper published in the county in which such town shall be situated. (Comp. Laws, 341.) The trustee published the notice upon the receipt of the receiver’s duplicate receipt from the federal land office, without waiting for the issuance of the patent. It is well settled that the patent relates back to the time of the issuance of the duplicate receipt, and that title virtually passes when such receipt is issued. The trustee gained time in the execution of the trust by not waiting for the patent to actually issue. The petitioner filed his application in pursuance of this notice, and no injury resulted to him from such publication. A lot claimant who files an application for a lot in pursuance of such a notice will not be heard to question the regularity of the same. The notice may be irregular, but it was not void. It accomplished all the purpose which a notice, unquestionably regular, could have accomplished in so far as all claimants were concerned who filed application in pursuance thereof. As to such claimants, the sufficiency and regularity of the notice is not open to question. . While counsel for petitioner attacked the authority of the trustee to allow any charge whatever for the survey under section 5, supra, little, if anything, has been said about the limitation, if any, imposed by that section upon the amount of the charge. As it is important not only for this case, but for the administration of townsites in the future that all questions touching limitations upon charges be decided, we think it should be determined whether the legislature intended to impose a limitation, as to the charge for the money by, the use of the expression, "a fee of_cents for each lot. We think the legislature did not contemplate that a charge of more than $1 should ever be made, hence the use of the sign and word "_cents.” The legislature fixed a definite maximum limitation for all other character of charges, and we think it was its intention so to do in this case, so that there might be a definite maximum amount which — 145 — should fix the total limitation of charges which could be imposed upon the lot claimant. In view of the large number of lots involved in most every townsite, there is ample room for a reasonable allowance for the survey within the maximum limit of $1, and this the legislature doubtless considered when it used the terms "_cents. ” We do not wish to be understood as holding that a trustee may arbitrarily fix a maximum charge for any or all the various items of charge mentioned in the sections of the statute, supra. The duties of his trust require that in every instance he determine a reasonable charge within the limits fixed by the statute. If it had appeared in this proceeding that the respondent was refusing to execute and deliver a deed to the petitioner upon a valid tender of the maximum amount which the trustee could impose under any state of facts shown by this proceeding, to wit, $5.50, then doubtless the writ of mandate would lie, for the statute imposes a duty upon the trustee to deliver a deed in such cases. (Comp. Laws, 345, supra.) It does not appear that the petitioner has made such a tender, and, as the writ will only issue in cases where the petitioner shows a clear legal right thereto, the application for a peremptory writ must be denied. It is so ordered.