with such power. The act in question is not, in our judgment, at all in conflict with section 28 of the Constitution. The power conferred is not legislative." In Kayser v. Trustees, 16 Mo. 91, approved in State v. Weatherby, 45 Mo. 22, the court stated: "The duties imposed on the county court in relation to this subject are judicial in their nature. They have no discretion. They have no authority to vest any power in the corporation. Their office is, upon the performance of certain acts by the inhabitants, to declare them incorporated, if satisfied of the verity of the facts set forth, and then the law declares the powers of which the corporation shall be possessed. Such a mode of incorporation is becoming common." In Forsythe v. City of Hammond, 68 Fed. 774, it was held that the Legislature could confer upon the courts the power to determine whether the conditions exist prescribed by law for the creation, enlargement, or contraction of a municipal body, and that a court cannot declare void an act of the Legislature which violates no provisions of the state or federal Constitution on the ground that it is wrong, unjust, or oppressive. In People v. Fleming, supra, the court said: "It is now well settled that laws delegating such power, in such a manner as is done under the statute under consideration, are not unconstitutional. People v. Reynolds, 5 Gilm. (Ill.) 1; Clarke v. City of Rochester, 28 N. Y. 605634; Bank v. Brown, 26 N. Y. 467-475; Currier v. Railway Co., 6 Blatchf. (U. S.) 487, Fed. Cas. No. 3,493; People v. Salomon, 51 Ill. 37; Alcorn v. Hamer, 38 Miss. 652; Bull v. Read, 13 Grat. (Va.) 78-89; Blanchard v. Bissell, 11 Ohio St. 96-100; Locke's Appeal, 72 Pa. 491, 13 Am. Rep. 716; People v. Nally, 49 Cal. 484; Dalby v. Wolf, 14 Iowa, 228. The law upon this question is clearly and forcibly stated in Blanding v. Burr, 13 Cal. 343-358, as follows: 'Laws may be absolute, dependent upon no contingency, or they may be subject to such conditions as the Legislature, in its wisdom, may impose. They may take effect only upon the happening of events which are future and uncertain, and, among others, the voluntary act of the parties upon whom they are designed to operate. They are not the less perfect and complete when passed by the Legislature, though future and contingent events may determine whether or not they shall ever take effect. * ** So the Legislature may confer a power without desiring to enforce its exercise, and leave the question whether it shall be assumed to be determined by the electors of a particular district. The Legislature may determine absolutely what shall be done, or it may authorize the same thing to be done upon the consent of third parties. It may command, or it may only permit; and in the latter case, as in the former, its acts have the efficacy of law.' In relation to the power of courts of quarter sessions in Penn

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sylvania, acting through commissioners, to erect new townships, and divide old ones, it is said: 'No one has ever doubted the constitutional right of the Legislature to authorize the exercise of both these jurisdictions by the courts, because it has never been imagined that it bore any resemblance to the power of enacting laws. Indeed, it is so entirely dissimilar that an elaborate attempt to show the contrast would be a mere waste of words. But, if the Legislature can authorize courts to decide questions of this character, they can authorize the people primarily to do so.' Com. v. Quarter Sessions, 8 Pa. 391--395, 416." Again, in Blanchard v. Bissell, 11 Ohio St. 100: "But counsel for defendant in error claim that if the statute is to be so construed, it is unconstitutional, and that no one can be made a member of a corporation without his consent. This may be true of corporations of a private and purely voluntary character, which are unconnected with the civil government of the country; but the principle is not applicable to municipal corporations, which are an important agency of civil government in the preservation of order, the enforcement of laws, and the promotion of the common interests of the whole community within their limits. * The constitutionality of this fourteenth section was affirmed by this court in the case of Powers v. Commissioners of Wood County, 8 Ohio St. 285, and we are entirely satisfied with that decision. It has the sanction of many kindred decisions in other states. Cheaney v. Hooser, 9 B. Monroe (Ky.) 330; Gorham v. Springfield, 21 Me. 59."

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The act is a general one, and may be made to apply to all unincorporated cities and towns in the state. It prescribes the conditions under which they may be incorporated, and authorizes the court to determine whether there has been a compliance with the requirements. In the present case it is conceded that a majority of the electors who were taxpayers made the proper application. The court is merely acting in order to give the law effect after having determined judicially the requisites as fixed by the Legislature. Upon compliance with and ascertainment and certification of the conditions by the court the incorporation results from provisions of the law as passed by the Legislature. To a great extent statutes, including those relating to crimes and other matters, do not become effective until after the happening and ascertainment of facts transpiring after their passage, to which they were intended to apply. In view of section 8 of article 8 of our Constitution and the nature of the power conferred on the district courts by the act, and the reasons apparent for sustaining it, as well as the weight of authority, and the later and better considered decisions upholding similar statutes in states where they are not so well supported by constitutional provisions, we feel

satisfied that sections 2 and 3 do not confer legislative power upon the district courts, and that they are not unconstitutional or invalid. Among the other cases sustaining these conclusions and in harmony with the trend of the decisions are: Evans v. City of Council Bluffs, 65 Iowa, 238, 21 N. W. 584; Ford v. Town of North Des Moines, 80 Iowa, 626, 45 N. W. 1031; McKean v. City of Mt. Vernon, 51 Iowa, 306, 1 N. W. 617; City of Emporia v. Smith, 42 Kan. 433, 22 Pac. 616; Huling v. City of Topeka, 44 Kan. 577, 24 Pac. 1110; Hurla v. City of Kansas City, 46 Kan. 738, 27 Pac. 143; Lammert v. Lidwell, 62 Mo. 188, 21 Am. Rep. 411; Grusenmeyer v. City of Logansport, 76 Ind. 549; Field v. Clark, 143 U. S. 693, 12 Sup. Ct. 495, 36 L. Ed. 294; State ex rel. Gale v. Ueland, 30 Minn. 29, 14 N. W. 58; Ferguson v. City of Snohomish, 8 Wash. 668, 36 Pac. 969, 24 L. R. A. 795; Henrico County v. City of Richmond, 106 Va. 282, 55 8. E. 683.

The writ is denied.

NORCROSS and SWEENEY, JJ., concur.

(30 Nev. 192)

STATE ex rel. GLEESON v. JUMBO EXTENSION MINING CO. et al. (No. 1,742.) (Supreme Court of Nevada. Feb. 29, 1908.) 1. MANDAMUS-APPLICATION-PRACTICE.

On filing an application for mandamus, the general practice of the Supreme Court is to issue an order to respondents to show cause why the relief asked should not be granted.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 33, Mandamus, §§ 320, 321.]

2. SAME-PROPER METHOD OF RAISING ISSUES.

While there is little difference whether the issues on a mandamus proceeding are raised by motion to quash the citation or by demurrer, it is the better practice to raise any objection by demurrer or answer.

[Ed. Note.-For cases in

vol. 33, Mandanus,s point, see Cent. Dig.

3. SAME SEPARATE DEMURRERS-PROPRIETY.

Where an affidavit for mandamus was entitled against a corporation and individuals, who were its directors, separate demurrers filed by the individual defendants and respondents are proper.

4. SAME-GROUNDS-ABSENCE OF OTHER LEGAL REMEDY.

Mandamus to compel the issuance and delivery of the stock of a corporation will not lie, unless the stock sought to be recovered has some pecuniary or special value peculiar in itself, differing from that of other like shares, or unless the shares are detained and the control of some corporation is at issue, and by securing the shares in question the party applying for a writ would obtain control; and in such cases it must affirmatively appear from the petition that the relator has a clear legal right to their possession, and that he has no plain, speedy, and adequate complete remedy at law.

Mandamus by the state, on the relation of John B. Gleeson, against the Jumbo Extension Mining Company and others. Petition dismissed.

Lewers & Huskey and McNutt & Hannon, for plaintiff. Key Pittman and Watson & Van Dyck, for defendants.

SWEENEY, J. This is an application for a writ of mandamus by the relator, John B. Gleeson, against the Jumbo Extension Mining Company et al., for the purpose of having issued and delivered to him 7,500 shares of Jumbo Extension Mining Company stock and 5,625 shares of Vernal Mining Company stock of Goldfield. Relator alleges in his petition for the writ that: "On or about May 10, 1904, the defendant corporation, the Jumbo Extension Mining Company, was organized under the laws of the territory of Arizona, by the name of 'Jumbo & Vernal Extension Mining Company,' with a capital stock of 1,250,000 shares, of the par value of $1 per share, and having its principal places of business in the city of Phoenix, Ariz., and at Tonopah, in the state of Nevada, and at Goldfield, in the state of Nevada. Whereupon, on or

about said 10th day of May, 1904, it transferred to R. A. Martin, C. B. Higginson, and J. T. Jones each 200,000 shares of its said capital stock, in consideration for certain mining claims transferred by them severally to said corporation. The other and remaining 500,000 shares of such stock were deposited in the company's treasury to be sold thereafter for development purposes. Afterwards, on or about the 21st day of June, 1904, said corporation sold to this plaintiff and relator 7,500 shares of its said capital stock out of the treasury of the said company for the sum of $300 then and there paid to said corporation by this plaintiff and relator. At the time of the purchase of said stock by the plaintiff and relator the said defendant corporation, its officers, and agents claimed and represented, and the fact was, as plaintiff and relator was informed and believed, that the said company had not as yet procured its blank certificates of stock, and, because thereof, could not and did not issue a certificate in the usual form for said 7,500 shares so bought by him. But the said corporation through its proper officers did issue to the plaintiff and relator the following instrument, to wit: 'Goldfield, Nev. June 21, 1904. This is to certify, that, in consideration of J. B. Gleeson having this day paid into the treasury of the Jumbo and Vernal Extension Mining Company the sum of three hundred dollars ($300), he, the said Gleeson is entitled to have issued to him seven thousand and five hundred (7,500) shares of the capital stock of said company held in reserve as treasury stock. Jumbo & Vernal Extension Mining Company, by H. B. Lind, Its Secretary.' That later, as plaintiff and relator is informed and believes and therefore alleges, the said corporation procured such certificates of stock. Whereupon and continuously thence forward hitherto this plaintiff and relator became entitled to have the said 7,500 shares

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of stock issued to him, and this plaintiff and relator has from time to time demanded of the said Jumbo Extension Mining Company, and of its proper officers, that a certificate of such stock should be issued to him, but to issue the same the said corporation and its officers have declined and refused. information and belief, plaintiff and relator alleges that there are in the treasury of the said company shares of its stock sufficient to enable the said company to perform its contract with the plaintiff and relator." It is further alleged by reason of a consolidation of certain mining claims with the Jumbo & Vernal Extension Mining Company, and by reason of the alleged ownership of 7,500 shares of the Jumbo Extension & Vernal Mining Company as above set forth, the relator became entitled to 5,625 shares of the stock of the Vernal Mining Company of Goldfield issued to him. Relator further alleges that none of the stock which it is alleged he purchased for said $300 has ever been delivered to him, and that the corporation and officers of said corporation, above-named defendants, refuse to issue and deliver the same to him. Upon the filing of this petition, this court granted an order to show cause to the abovenamed defendants commanding them to appear on a day certain, and show cause, if any they have, why this court should not on this said petition, and at such time issue a peremptory writ of mandate commanding the defendants to issue to said relator 7,500 shares of the capital stock of the Jumbo Extension Mining Company and 5,625 shares of the capital stock of the Vernal Mining Company of Goldfield as claimed by relator in his petition. In due time defendants appear. ed and interposed a motion to quash the citation and also a demurrer, both of which set forth identically the same grounds. If the motion to quash the citation were granted or denied, its effect would be the same as that sought to be obtained if the demurrer were sustained or overruled. This motion to quash the citation for a writ of mandamus and the demurrer interposed upon the same grounds is confessed to have been done by counsel for defendants because of a doubt in his mind as to which procedure was the proper one. In view of the fact that the court on filing of relator's petition issued an order to respondents to show cause why the relief sought in the petition for writ of mandamus should not be granted, which is the practice now generally followed by this court in mandamus proceedings, defendants were given an opportunity on said date commanded in the citation to raise any objections they desired and chose to interpose their objections both by demurrer and motion to quash the citation. While there is little difference in the way these issues are raised, we think the better practice in the future to be pursued in similar cases is to raise any objections to the petition by demurrer or answer.

Defendants set forth in their demurrer and motion to quash the citation for writ of mandamus their reasons why said peremptory writ should not issue, as follows: "(1) That said affidavit or petition of said relator upon which the alternative writ herein issued and wherein the relator seeks a peremptory writ of mandamus from this court does not state facts sufficient to entitle said relator to the relief in said petition prayed for, or to the peremptory writ of mandamus referred to in the alternative mandamus or citation herein issued. (2) That it does not appear from said affidavit or petition that said relator has no plain, speedy, and adequate remedy at law. (3) That it does appear from said affidavit or petition of said relator that he has a plain, speedy, and adequate remedy at law by an action against said defendant corporation for the value of the stock claimed by said relator. It further appears from said affidavit or petition that said relator has a plain, speedy, and adequate remedy in equity by an action against said defendant corporation for a specific performance of his said alleged contract. (4) It affirmatively appears from said affidavit or petition of said relator that said defendant corporation is solvent, and is able to respond in damages for any judgment said relator may obtain against said corporation for the value of said stock so alleged to be wrongfully withheld from said relator by said defendant corporation and its officers. (5) It affirmatively appears from said affidavit or petition that said defendant corporation has ample of said stock in its possession to satisfy any judgment said relator might obtain in a court of equity for the specific performance of said alleged contract and order to deliver said stock. (6) That the remedy sought under the statement of facts in said affidavit or petition of said relator does not require the compelling of the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station or to compel the admission of a party to the use and enjoyment of a right or office to which he is entitled. (7) It does not appear from said affidavit or petition that the issuance of said stock was ever authorized by the board of directors of said defendant corporation, or that the execution of said agreement set out in plaintiff and relator's petition, dated June 21, 1904, and signed by H. B. Lind as secretary of the defendant corporation, Jumbo & Vernal Extension Mining Company, was ever authorized by said defendant corporation, or ever ratified thereafter by the same; and it does not appear that the president or secretary or directors of said defendant corporation have any authority to issue to said relator any stock of said defendant corporation, or any other corporation upon the surrender of said instrument set up in said petition, dated June 21, 1904. (8) It does not appear from said affidavit or petition that said Albert

S. Watson, trustee, has ever executed his said trust or delivered said stock of said Vernal Mining Company of Goldfield into the possession of said Jumbo Extension Mining Company. (9) That the court has no jurisdiction over the subject-matter of said petition, or to issue the writ therein prayed for, for the reason that it does not appear from said petition that said plaintiff and relator has no plain, speedy, or adequate remedy at law."

Before considering the objections raised as to the issuance of the peremptory writ by the demurrer of the respondents, we believe it advisable to first pass upon a question raised in relator's brief wherein he raised the following objection to our considering the demurrer or motion to quash as interposed by the respondents. In his opening brief relator asserts: "We respectfully submit that no question is or can be properly raised by the separate and independent demurrers and motions filed by T. G. Lockhart; by Edward S. Van Dyck; by Mrs. T. G. Lockhart, C. B. Higginson, J. L. Towley, and the Jumbo Extension Company; and by the Vernal Mining Company. These seem to have been filed by the above persons in their individual capacities, on the theory that the action is against the respondents as individuals, and not as a board of directors. There is no showing that any one of these numerous motions and demurrers are the motions or demurrers of the board of directors as such. In fact, it clearly appears that they are not, but are the pleadings of the individuals named. Therefore, it necessarily follows that there is no appearance of the board of directors of either company. This court cannot consider the personal and individual appearance of the above individuals." We do not consider there is any merit in the objection raised by relator to preclude this court from considering the points raised in respondent's demurrer. The demurrer and motion complained of are entitled in every respect in the same way as relator's petition for a writ of mandamus, and have the same entitlement as the order of this court issued to said defendants commanding them to appear. It is evident that, if the objections raised by relator have any merit or force, their petition should be dismissed. We believe for the purposes of the petition and the order as issued that all parties are now before the court, and that the objections raised by respondents have been properly submitted. This court has repeatedly and recently held (State ex rel. Botsford v. District Judge, 29 Nev. 91 Pac. 737) in line with principles so clearly and tersely expressed by High on Extraordinary Legal Remedies, here quoted and supported by innumerable authorities and text-writers when mandamus ought and will issue, and that it will not issue where the petitioner has a plain, speedy, and adequate remedy at law. "The writ of mandamus being justly regarded as one of the highest writs known to our

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system of jurisprudence, it issues only where there is a clear and specific legal right to be enforced, or a duty which ought to be and can be performed, and where there is no other specific and adequate legal remedy. Since the object of a mandamus is not to supersede legal remedies, but rather to supply the want of them, two prerequisites must exist to warrant a court in granting this extraordinary remedy: First, it must be shown that the relator has a clear, legal right to the performance of a particular act or duty at the hands of the respondent; and, second, it must appear that the law affords no other adequate or specific remedy to secure the enforcement of the right and the performance of the duty which it is sought to coerce. The test to be applied, therefore, in determining upon the right to relief by mandamus, is to inquire whether the party aggrieved has a clear, legal right, and whether he has any other adequate remedy, since the writ belongs only to those who have legal rights to enforce, who find themselves without an appropriate legal remedy." "From the origin, nature, and purpose of the writ, it has been shown to be an extraordinary remedy, applicable only in cases where the usual and accustomed modes of procedure and forms of remedy are powerless to afford relief. It follows, therefore, from the principles already established, as well as from the very nature and purpose of the remedy itself, that the writ never lies when the party aggrieved has another adequate remedy at law, by action or otherwise, through which he may attain the same result which he seeks by mandamus. This principle is of the highest importance in all cases where it is necessary to determine upon the propriety of interference by mandamus, and the rule will be found to be firmly established as one of the fundamental principles underlying the entire jurisdiction, that the existence of another specific, legal remedy, fully adequate to afford redress to the party aggrieved, presents a complete bar to relief by the extraordinary aid of a mandamus. The rule has been recognized from the earliest times, and it has been applied throughout the entire growth and development of the law of mandamus. Indeed, it results from the very nature and origin of the writ, which was introduced to supplement the existing jurisdiction of the courts, and to afford relief in extraordinary cases where the law presented no adequate remedy. The existence or nonexistence of an adequate and specific remedy at law in the ordinary forms of legal procedure is therefore one of the first questions to be determined in all applications for the writ of mandamus, and whenever it is found that such remedy exists, and that it is open to the party aggrieved, the courts uniformly refuse to interfere by the exercise of their extraordinary jurisdiction." High on Extraordinary Legal Remedies (3d Ed.) §§ 9, 10, 15.

In the light of these fundamental princl