Bowker v. Goodwin.

papers should be held to be an agreement, but even if a promissory note. The court below admitted the paper and the plaintiff excepted. Was the ruling correct? If the two instruments were executed together as one transaction, then upon every authority they constituted but one instrument or contract, although written on different pieces of paper. They would have to be taken and construed together as if written on the same paper and signed by both parties. The law in such case deals with the matter as it really was as one transaction-and therefore all the papers drawn up simultaneously bearing on the same subject are held to be but one contract, although written on several papers. If both papers constitute but one contract, then it is clear it was only necessary to use the stamps required for one contract.

There was a conflict of testimony as to whether the papers here in question were executed simultaneously, or constituted one transaction, it is true; but the court below deemed the evidence sufficient to warrant the conclusion that they should be taken as one contract, executed simultaneously, and consequently admitted the paper objected to. In such case, the conclusion attained by the court below cannot be disturbed. The decision of the court at nisi prius, as to the sufficiency of proof upon any collateral fact like this, must be governed by the rule which prohibits the appellate court from setting aside a verdict or findings of fact, upon the ground of insufficiency of evidence, where there is a conflict. As, therefore, it cannot be said the court was not warranted by the testimony in treating the two papers as one contract, evidencing one transaction, we must accept it as an established fact in the case; and as one of the papers was stamped, it must be held, as was done in the court below, that the portion of the contract objected to required no separate stamp for itself, and was consequently admissible.

So the ruling upon the other assignment which is to be noticed was likewise correct. The value of the ninety shares of Truckee Ditch Company stock could only be material, upon the assumption that the defendant was in some way bound, either to deliver the stock to the plaintiff or liable for its value. Now it is very well settled that the measure of damage, in cases where there is a con

Ex parte James P. Martin.

version of, or a failure to deliver, stock of this character according to contract, is its market value, either at the time of conversion, when it should have been delivered, or at the time of trial, according to circumstances. O'Meara v. North American Mining Company, 2 Nev. 123. In no case would its value, as connected with other property, or as modified by some peculiar circumstances, be the measure of damage. If the stock can be purchased in the market, that which was converted, or should have been delivered, may be replaced. It is not claimed here that the particular ninety shares of stock which the defendant agreed to deliver, had any peculiar value over any other ninety shares in the same company. Why, then, should any sum be allowed as damages, beyond what may be sufficient to replace that which the defendant was called upon to deliver, or at least its market value at the time it should have been delivered. It cannot be claimed that plaintiff was damaged beyond that, and the law does not pretend to do more than award full compensation for a breach of contract. If the defendant wishes to procure the stock, he might be allowed such damages as will enable him to purchase it, and there is no claim that any equal number of shares will not be equally valuable in connection with his ranch as those which the defendant contracted to deliver. The court below ruled correctly, then, in excluding evidence of the value of the stock, taken in connection with the ranch. These being the only errors which can be considered upon this record, the judgment below must be affirmed. It is so ordered.

EX PARTE JAMES P. MARTIN.

STATE REVENUE STAMPS ON FOREIGN BILLS. The statute requiring the fixing of revenue stamps to foreign bills of exchange (Stats. 1871, 142) is not a regula tion of commerce between this and other states, nor does it lay an impost or duty on exports within the meaning of Art. I, Secs. 8 and 10 of the United States constitution.

CONSTITUTIONALITY OF STATE STAMP ACT. The enactment of the statute imposing a revenue stamp upon bills of exchange drawn in this state upon another state, (Stats. 1871, 142) was a legitimate exercise by the state of its inherent and unsurrendered power of taxation.

Ex parte James P. Martin.

HABEAS CORPUS before the Supreme Court. It appears that the petitioner in April, 1871, at the city of Virginia, drew and issued a bill of exchange for $500, made payable at the city of San Francisco, California, without affixing a stamp thereto in accordance with the provisions of the state stamp act. Being prosecuted therefor before Wm. Livingston, a justice of the peace in Virginia City, and found guilty of misdemeanor, he was sentenced to pay a fine of $50, in default of which payment he was imprisoned in the county jail of Storey County. It was from such imprisonment that he was taken before the Supreme Court on this writ.

Wm. S. Wood, for Petitioner.

I. By the Act of 1871, no stamp is required upon a bill of exchange drawn singly in this state, but payable at sight or on demand, in another state. The law provides that inland bills, drawn at sight or on demand, are exempt from the payment of any stamp duty, and that foreign bills, drawn singly, or otherwise than in a set of three or more, are required to pay the same duty as inland bills. Whatever, therefore, exempts an inland bill must necessarily have the same effect upon a foreign one. And as the making of an inland bill payable at sight or on demand frees it from stamp duty, a foreign bill, drawn in the same way, is free also.

II. The act is void, because in conflict with Art. I, Secs. 8 and 10, of the United States constitution. It is a regulation of commerce between this and other states and foreign countries, and it also lays an impost or duty on exports from this state and imports into the same. Almy v. The People of the State of California, 24 Howard, 172 ; The Carson River Lumbering Company v. Patterson, 33 Cal. 334; Brown v. Maryland, 12 Wheaton, 448; Western Union Telegraph Co. v. Atlantic and Pacific States Telegraph Co., 5 Nevada, 107; Gibbons v. Ogden, 9 Wheaton, 1; People v. Raymond, 34 Cal. 495; Crandall v. State of Nevada, 6 Wallace, 35; Sinnot v. Davenport, 22 Howard, 227; Ex parte Crandall, 1 Nevada, 294.

L. A. Buckner, Attorney General, for the State.

Ex parte James P. Martin.

By the Court, GARBER, J.:

The statute under which the petitioner was convicted, (Stats. of 1871, 142) requires the affixing of a stamp to such a bill as that drawn by him. It levies upon foreign bills the same rate of duty imposed upon inland bills; but it does not extend to the former the exemption accorded to the latter.

The statute is not a regulation of commerce between this and other states, nor does it lay an impost or duty on exports, within the meaning of Secs. 8 and 10 of Art. I of the constitution of the United States. Though this may not have been directly decided by the Supreme Court of the United States, it follows from and is the necessary result of the reasoning of that court in Nathan v. Louisiana, 8 How. 73, and Paul v. Virginia, 8 Wallace, 168. In Paul v. Virginia, the proposition that foreign bills of exchange, although instruments of commerce, are the subjects of state regulation and may be subjected to direct state taxation, is assumed as the logical result of the principle enunciated in Nathan v. Louisiana. This assumption was not a mere dictum, but was virtually a decision affirming the proposition thus made the basis of the later adjudication, and to the consideration of which as "a main part of the argument,” the attention of the court was pointedly directed. 5 Taunton, 159. It is also fully sustained by the argument of Chief Justice Taney, in the Passenger cases. He says: "I may, therefore, safely assume that, according to the true construction of the constitution, the power granted to congress to regulate commerce did not in any degree abridge the power of taxation in the states. They are expressly prohibited from laying any duty on imports or exports, except what may be absolutely necessary for executing their inspection laws, and also from laying any tonnage duty. So far, their taxing power over commerce is restrained, but no further. They retain all the rest; and if the money demanded is a tax upon commerce or the instrument or vehicle of commerce, it furnishes no objection to it, unless it is a duty on imports or a tonnage duty, for these alone are forbidden."

A bill of exchange is neither an export nor an import, but it would make no difference if it were; for the term " export," in

Meadow Valley Mining Company v. Dodds.

the clause of the constitution referred to, embraces only articles exported to foreign countries, and does not include those exported from one state into another. 8 Wallace, 123. It follows that the enactment of the statute in question was a legitimate exercise by the state of her inherent and unsurrendered power of taxation. The petitioner is remanded to the custody whence he came.

MEADOW VALLEY MINING COMPANY, APPELLANT, v. ELLIOTT DODDS et als., RESPONDENTS.

TRANSFER OF CASES TO U. S. CIRCUIT COURT. Where in a suit commenced in a district court by a citizen of a foreign state against a citizen of this state, the plaintiff made an application to transfer it to the United States circuit court in accordance with the act of congress of March 2d, 1867: Held, that the refusal of the application was error. JURISDICTION OF SUITS BETWEEN CITIZENS OF DIFFERENT STATES. The United States constitution (Art. III and Art. I, Secs. 8, sub. 17) vests full control and jurisdiction in the federal government over all suits "between citizens of different states "; and congress may assume jurisdiction of such cases at any stage by vesting it absolutely and exclusively in the federal courts. TRANSFER TO FEDERAL COURT AFTER SUBMISSION TO STATE JURISDICTION. The fact that a citizen of another state has submitted to the jurisdiction of a state court a suit against a citizen of this state, does not prevent him from insisting upon a transfer of his case to the United States circuit court, in accordance with the act of congress of March 2d, 1867.

The

AFFIDAVIT FOR TRANSFER OF CAUSE TO UNITED STATES CIRCUIT COURT. affidavit provided for by the act of congress of March 24, 1867, to authorize the transfer of a case from a state court to the United States circuit court, requires a statement by the party that he has reason to, and does, believe that from prejudice or local influence he will not be able to obtain justice in the state court; but it does not require any showing of the existence of such prejudice or local influence, or any statement of facts upon which he founds his belief.

DISTINCTION BETWEEN "SHOWING" AND "STATING" A FACT. There is a material distinction between "showing" a fact and "stating" it; in the former case, satisfactory proof may be required; in the latter, the mere recital of the fact is sufficient.

APPEAL from the District Court of the Seventh Judicial District, Lincoln county.