State ex rel. Mason v. County Commissioners of Ormsby County.

which action plaintiff seeks to review and reverse on a writ of certiorari: contending, first, that such action could only properly be had at general or special session, and not then unless within thirty days from the assessment; that there is no showing as to the session, and that more than thirty days after assessment had elapsed before application made.

The language of the act does not limit the power of the board; but is evidently intended to enlarge it in distinction to the restrictions imposed on the commissioners sitting as a board of equalization under the general revenue law. It is said that upon application for relief," the board of commissioners shall hold a general or special session, to hear and fully determine the matter. Stats. 1867,

111, Sec. 1. That is, action may be taken irrespective of the particular character of session. The record brought up shows that the board was in formal session when acting on the petition of the Virginia and Truckee Railroad Company, and that is sufficient. There is no limitation imposed by the statute as to the time of application for discharge; none should be inferred.

It is next objected that the discharge of a tax is a judicial act, and as such, beyond the powers of the board of commissioners. The plaintiff would have no right to this writ unless the board had such powers, because it is only granted "when an inferior tribunal, board or officer exercising judicial functions has exceeded the jurisdiction of such tribunal, board or officer." Stats. 1869, 263, Sec. 436. But the exercise of such functions is not, as plaintiff supposes, obnoxious to the constitutional division of powers. In 1857, the Supreme Court of California said, reversing the opinion in People v. Hester, 6 Cal. 679, which held that the writ of certiorari would not lie to review the action of county supervisors: "The error in the case of the People v. Hester, consisted in overlooking the fifth section of the ninth article of the constitution, which provides that the legislature shall have power to provide for the election of a board of supervisors in each county, and these supervisors shall jointly and individually perform such duties as may be prescribed by law.' This section must be regarded as limiting the third article (distributing powers). In using the word 'su

State ex rel. Mson v. County Commissioners of Ormsby County.

pervisors' the constitution intended to adopt it with its known meaning, and in the sense in which it was generally understood.

"The word 'supervisors,' when applied to county officers, has a legal signification. The duties of the officer are various and manifold; sometimes judicial, and at others legislative and executive. From the necessity of the case, it would be impossible to reconcile them to any particular head; and therefore, in matters relating to the police and fiscal regulations of counties, they are allowed to perform such duties as may be enjoined upon them by law, without any nice examination into the character of the powers conferred. This rule will preserve the utility of these officers, while it is, at the same time, in harmony with the spirit of the constitution itself." People v. El Dorado County, 8 Cal. 58; People v. Supervisors Marin County, 10 Cal. 344; Waugh v. Chauncy, 13 Cal. 12; Robinson v. Board of Supervisors Sacramento, 16 Cal. 208.

Section 26 of Article IV, of the constitution of Nevada, seems to have been adopted from California, substituting the synonym "commissioner," for "supervisor"; so it may be lawfully presumed to have been taken with the judicial interpretation attached.

the

It is argued that the board had exhausted its power in the matter of the railroad application, because it had once acted upon petition to equalize the same tax. If the legal proposition, that such a tribunal, having once acted, cannot review its action, be correct, yet the facts in this case do not furnish us with the necessary premise. The application first acted on was one to equalize; the one under review is to discharge: two entirely different propositions. While, perhaps, the power to discharge might include the right to equalize, yet the authority to equalize would give no direct license to discharge. The ultimate object might possibly be attained, by equalizing to a minimum; yet that would, if done in good faith, be an extreme case, and an evident exception to the rule. Through excess of caution, that no exception could be taken to the absolute control of the board upon application for action in these peculiar assessments, the legislature seems to have used the words "equalize," "modify," "discharge," that every conceivable form of relief might be included; so, notwithstanding the board had once acted upon a petition to equalize, it yet retained the power to

State ex rel. Mason v. County Commissioners of Ormsby County.

act upon a subsequent application from the same party to discharge; that being another and entirely different matter. It will also be seen, that this is more a question of individual right in the petitioner, than of jurisdictional power in the board: such right must, by the received rules, be liberally construed; and cannot, therefore, be limited, as would be the case were the position of counsel sustained.

The objection that the evidence is in conflict with the order, cannot be considered. As the record shows affirmatively that the commissioners acted within their jurisdiction, how they acted is not the subject of review by this court. Fall v. The County Commissioners of Humboldt Co., 6 Nev. 100.

The action of the board is affirmed.

By GARBER, J., dissenting:

I think the commissioners exhausted the jurisdiction conferred upon them by the statute, when they considered and denied the application to equalize. The grant of power to the commissioners must be strictly construed. 7 Ohio Stats. 115. And so construed, it seems to me that the legislature contemplated one application only by the person aggrieved. Upon such application, the commissioners are given the power, either to modify or wholly to discharge the assessment. By their refusal, on the first application, to modify it, they virtually affirmed its validity-they adjudged that the whole amount was properly assessed. And such their adjudication was, by the very terms of the statute, a final determination of the matter. Practically, too, this construction of the statute seems fair and just. It gives to the party aggrieved ample opportunity to show any cause he may have, why the assessment should be either totally set aside, if illegal, or reduced in amount, if excessive; and only denies to him the right to litigate his claim by piecemeal.

Morris v. McCoy.

JOHN S. MORRIS, APPELLANT, v. W. W. McCOY, RESPOND

ENT.

"LIQUIDATED DAMAGES" WHEN HELD TO BE MERE "PENALTY." Where McCoy covenanted with Morris to pay certain debts owing by Morris, and, in case of failure, to pay to Morris $10,000 as fixed, settled and liquidated damages: Held, that the sum so named was to be considered a penalty and not liquidated damages, and that in a suit on the covenant the recovery should be limited to the actual damage with legal interest.

RULE AS TO WHAT SHALL BE "PENALTY " INSTEAD OF 'LIQUIDATED DAMAGES." Where parties stipulate for the payment of a large sum of money as damages for the failure or nonpayment of a smaller sum at a given time, such large sum so agreed upon, no matter what may be the language of the parties, will be deemed a penalty and not liquidated damages.

COVENANT FOR PERFORMANCE OF VARIOUS ACTS- WHEN STIPULATED DAMAGES MERE PENALTY. Where a covenant is such that it secures the performance or omission of various acts, some of which may not be readily measurable by any exact pecuniary standard, together with others in respect of which the damages on the breach of the covenant are certain or readily ascertainable by a jury, any sum therein agreed upon as damages in case of breach will always be held a mere penalty.

COVENANT-WHEN CONSIDERATION STATED NOT TO BE VARIED BY PAROL. Where in a suit for damages under a bond, which called in terms for a large sum as "liquidated damages" but was in law a penalty to secure the payment of a smaller sum, and there was no ambiguity in the instrument: Held, that the agreement was fully embraced in the writing, and that plaintiff could not be allowed to show by parol that the consideration for the agreement was of greater value than the sum so secured to be paid.

COVENANT TO PAY "LIQUIDATED DAMAGES"-WHEN PAROL EVIDENCE CONCERNING "SITUATION OF PARTIES" ALLOWABLE. In a suit on a bond which provides for the performance of certain acts, and for the payment of a stipulated sum as damages in case of breach, parol evidence concerning the subject matter of the contract, so far as the situation of the parties is concerned, is only admissible when it tends to show that the failure to perform the acts agreed upon has resulted in such damages as cannot be readily ascertained by any pecuniary standard.

"OFFER OF PROOF " MUST SHOW WHAT PROOF IS OFFERED. Where, in a suit on a bond providing in terms for the payment of a large sum as liquidated damages, plaintiff offered to prove by parol "the situation of the parties and circumstances surrounding them," which offer was refused; and the bill of exceptions failed to show what particular situation or circumstances it was offered to prove, or whether they had any bearing on the contract: Held, that the offer was not sufficient, and was presumptively properly refused.

Morris v. McCoy.

APPEAL from the District Court of the Sixth Judicial District, Lander County.

The bond sued on in this action was as follows: "Whereas John W. Morris, William D. Morris and John S. Morris have this twenty-first day of July, 1869, conveyed to me, W. W. McCoy, by good and sufficient deed, all their right, title and interest in and to all the personal and real property known as the property of the Eureka Smelting and Mining Company, situated, lying and being in Eureka Mining District, Lander County, state of Nevada. Now, therefore, in consideration of said transfer and conveyance on the part of the said John W. Morris, William D. Morris, and John S. Morris, I do hereby covenant and agree to and with the said John S. Morris that I will pay and fully discharge all debts and obligations of whatever name or kind that may now be due and owing, or that may become due, from the said John S. Morris as a member of the firm of Morris, Monroe & Co., created in the management or working of the said Eureka Smelting and Mining Company's property, being the same this day conveyed to me by the said John W. Morris, William D. Morris and John S. Morris. And I do further covenant and agree to and with the said John S. Morris, that I will pay and fully discharge that certain promissory note made, executed and delivered in the year 1869, to one P. B. Poryjoy by the said John S. Morris, in the sum of about one hundred and eighty dollars. And I do further covenant and agree to and with the said John S. Morris that I will hold him harmless against all actions at law or in equity that may be brought against him individually, or as a member of the firm of Morris, Monroe & Co., for the recovery of any of the debts now due, or to become due, against the said John S. Morris as a member of the firm of Morris, Monroe & Co., made or created in the management or working of said property; and that I will pay all costs and other expenses that the said John S. Morris may be put to, or become liable for, in the defense of any action that may be brought for the enforcement of any debt or other obligation created in the management or working of said mining property. For the faithful performance of each and every of the covenants and agreements hereinbefore mentioned, I do bind my