Ferguson v. Rutherford.

stead of this, he had proved a fulfillment in good faith, but not in the manner prescribed, and the sanction and acceptance of the defendants, still the burden of producing and proving the contract would have rested on him. Laduc v. Seymour, 24 Wendell, 64, and cases supra. It follows that it is not proving new matter, for the defendants to show that there are other terms in the contract from which the plaintiff has deviated, either to defeat the action, or to reduce the damages, accordingly as the case of the plaintiff is shaped. Thus far, the defendants can go under their denials. The fact that circumstances called forth by legitimate cross-examination happen also to sustain a cross-action or counter claim, affords no reason why they should be excluded. 8 M. & W. 858.

In answer to the second proposition of counsel, but little need be said. So far as they had the right to cross-examine at all, it was the privilege of the defendants to make a thorough, searching and exhaustive examination. Admitting that it may be so needlessly and impertinently protracted as to justify the interposition of the court, this is a thing of rare occurrence; and, except in extreme cases, counsel should not be controlled or hampered in the exercise of a duty so delicate and important.

The facts here do not excuse the interference of the court, nor do they justify what was practically an absolute denial of the right. That right was, to draw out on cross-examination and by leading questions anything which would tend to contradict, weaken or modify the evidence the plaintiff had given on his direct examination, or any inference which might have resulted from it, tending in any degree to support his case-for instance, to show that his conduct had been at variance with his testimony or its tendency. 13 Gray, 283; 14 Mich. 184. Under this rule, some of the questions were obviously pertinent. The plaintiff might have so answered as to show that he claimed an amount inconsistent with his theory that he did not make the guarantee to the extent asserted by the defendants, and that to the extent that he did guarantee, this condition of the contract was waived. Until the questions asked were answered, neither the court nor the counsel could well determine the necessity or propriety of following them up with other questions; and, to have proffered others, in defiance of the distinct

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

ruling of the court that no cross-examination as to the terms of agreement was proper, would have been unseemly and indecorous. The judgment and order appealed from are reversed.

THE STATE OF NEVADA EX REL. H. S. MASON, v. THE BOARD OF COUNTY COMMISSIONERS OF ORMSBY COUNTY.

POWER OF COUNTY COMMISSIONERS OVER SUPPLEMENTAL ASSESSMENTS. Under the act of 1867, (Stats. 1867, 111) the board of county commissioners are empowered to modify, equalize or discharge any supplemental assessments therein provided for, upon proper application of the party in interest. CONSTRUCTION OF STATUTE RELATING TO SUPPLEMENTAL ASSESSMENTS. The language of the act of 1867, providing for supplemental assessments, (Stats. 1867, 111) does not limit the power of the board of county commissioners in reference to the modifying, equalizing or discharging of supplemental assessments; 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.

SESSIONS AND TIME FOR EQUALIZING OR DISCHARGING SUPPLEMENTAL ASSESSMENTS. Under the statute relating to supplemental assessments, (Stats. 1867, 111) action may be taken by the board of county commissioners to modify, equalize or discharge such assessments, irrespective of the particular character of session of the board; nor is there any limitation imposed by the statute as to the time of application.

DISCHARGE OF SUPPLEMENTAL ASSESSMENT BY COUNTY COMMISSIONERS NOT UNCONSTITUTIONAL. The exercise of the functions of the board of county commissioners in the discharge of a supplemental assessment under the statute providing therefor (Stats. 1867, 111) is not obnoxious to the constitutional division of powers. (Const. Art. III.)

POWERS OF COUNTY COMMISSIONERS. The duties of county commissioners are various and manifold; sometimes judicial, and at others legislative and executive; in matters relating to the police and fiscal regulations of counties, they are such as may be enjoined by law, without any nice examination into the character of the powers conferred.

INTERPRETATION OF SECTION 26, ARTICLE IV, OF CONSTITUTION. The constitutional provision relating to county commissioners seems to have been adopted from California; and it may be lawfully presumed to have been taken with the judicial interpretation attached to it in that state.

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

DISCHARGE OF SUPPLEMENTAL ASSESSMENT AFTER REFUSAL TO EQUALIZE. Where an application was made to the board of county commissioners to equalize a supplemental assessment under the act of 1867, (Stats. 1867, 111) which was denied; and afterward an application was made to discharge the same assessment Held, that the board had not exhausted its power in reference to the assessment by its action on the application to equalize.

DISTINCTION BETWEEN 66

EQUALIZING " AND "DISCHARGING AN ASSESSMENT. The discharge of a supplemental assessment under the act of 1867, (Stats. 1867, 111) is entirely different from an equalization of the same. CERTIORARI-WEIGHT OF EVIDENCE NOT SUBJECT TO REVIEW.

Where on cer

tiorari from an order of county commissioners discharging a supplemental assessment, the record showed that the commissioners acted within their jurisdiction; and it was objected that the evidence was in conflict with the order: Held, that the question as to how they acted was not a subject of review on certiorari.

THIS was an original proceeding, on certiorari, in the Supreme Court. The affidavit set forth, among other things, that the county treasurer and ex-officio tax receiver of Ormsby County, in 1869, assessed the property of the Virginia and Truckee Railroad Company at $161,000, under the provisions of the act of March 12th, 1867, (Stats. 1867, 111); that on January 11th, 1870, the company made an application to have the assessment equalized; that such application was denied; that on January 25th, 1870, a second application for equalization was made, upon which application the commissioners of their own motion struck out and remitted the entire assessment; that a writ of certiorari was issued by the Supreme Court to review such action of the commissioners, which upon review in the Supreme Court was reversed, [see State ex rel. Swift v. Ormsby County Commissioners, 6 Nev. 95]; that afterward, on July 7th, 1870, the company made an applica tion to discharge the assessment; and in response thereto the board of commissioners made an order discharging the same. It was to review the proceedings on the application for discharge that this writ was issued.

L. A. Buckner, Attorney-General, and Clark & Lyon, for Relator:

I. The commissioners had no jurisdiction to " equalize, modify or discharge the tax except at a general or special session," and not

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

then unless within thirty days from the assessment. Stats. 1867, 111, Secs. 1 and 2.

II. The commissioners have no constitutional power to discharge a tax. This is purely a judicial question, with which the courts, not the commissioners, must deal. Cooley's Com. Law, 91 and 92; 33 Cal. 279.

Const. Art. VI, Secs. 1 and 6;

III. The record fails to disclose the general facts conferring jurisdiction. There was no general or special meeting of the board to hear the complaint, such as is contemplated by law.

IV. The commissioners having once heard the complaint of the railroad company, and having finally acted thereon, exhausted their jurisdiction in the premises. People v. Supervisors of Schenectady County, 35 Barb. 408.

V. The evidence in the case is in direct conflict with the order of the board.

Mesick & Wood, for Defendants:

I. The commissioners had jurisdiction to discharge the assessment. The same statute which imposed the assessment conferred upon them authority to equalize, modify or discharge such assessment. Hence it may be said that the legislature authorized the assessment to be made only upon the condition that it might be so equalized, modified or discharged. It was as competent for the legislature to make this condition as to provide for the assessment at all; and it was likewise as competent for it to delegate the power of equalizing, modifying or discharging the assessment when made, as to exercise it itself.

II. The commissioners were invested with jurisdiction to enter upon the hearing of the matter of the petition, unless by reason of prior action the board had become functus officio in respect to this matter, or their jurisdiction was barred by lapse of time. Their jurisdiction was not barred by lapse of time so long as the matter stood as a mere assessment. No limitation is expressed in the act. Limitations are expressed in the general revenue law in respect of the period of jurisdiction of the board of equalization over other as

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

sessments. Hence, a different legislative intent in this case. To infer a limitation where none is expressed would be a violation of plain rules of construction, and lead to the accomplishment of the very injustice which the legislature, from the terms of the act, plainly intended to prevent.

As to any prior action of the board, there are two sufficient answers: one, that there is no sufficient evidence of any such prior action; the other, that the former action, if entitled to be considered, was not an application to discharge, but only to equalize. Discharging an assessment and equalizing an assessment are manifestly different and distinct acts.

III. The assessment complained of was subject matter for the jurisdiction of the board; but the quantity or quality of the means used to persuade their mind were not jurisdictional måtters, and, therefore, they are not the subject of review here. On the testimony taken, they found that the property assessed was not property which the assessor has neglected or omitted from any cause to make an assessment of, nor property which had come into the county since the closing of the assessment roll. Whether these conclusions were correct or otherwise is not a question of jurisdiction at all, and cannot be, and therefore is not a question for review on certiorari. For aught that appears then, the board kept within the line of their jurisdiction, and, in discharging the assessment, made a valid order, which should be affirmed.

By the Court, WHITMAN, J. :

The Act of 1867, Stats. 1867, p. 111, providing for supplemental assessments, has been before considered. Virginia and Truckee R. R. Co. v. Ormsby County Commissioners, 5 Nev. 341; The State of Nevada ex rel. Swift v. Ormsby County Commissioners, 6 Nev. 95. From these cases it follows that the board of county commissioners was under that act empowered to modify, equalize or discharge any such assessment upon proper application of the party in interest.

Such application has been made in this case, and the assessment. against the Virginia and Truckee Railroad Company discharged,