among whose duties is the final auditing and settling of all claims against the state.

That said act neither takes anything away from the constitutional powers of the board of examiners, nor adds anything to those of the controller, and is not unconstitutional.

Where a member of a board of state printing commissioners had a claim for his services passed upon and allowed by the board of examiners, but omitted to have it audited by the controller; and the latter for that reason refused to issue his warrant upon the treasury for the amount so allowed: Held, that it was necessary to show a presentation of the claim for allowance to the controller, and that without such showing the controller would not be compelled by mandamus to issue his warDuties of Secretary of State.

rant. State ex rel. Lewis v. Doron, 5 Nev. 399, 407, 408, 409, 410, 413.

Where a sum has been appropriated by the state legislature providing for the payment to the lieutenant-governor of a salary in solido as ex officio adjutant-general and ex officio state librarian, and another is appointed, the state controller is justified in refusing to audit a compensation allowed such substituted official by the board of examiners, as the appropriation has become inoperative. State ex rel. Gallup v. Hallock, 19 Nev. 371, 374 (12 P. 48).

See, also, State ex rel. County of Lyon v. Hallock, 20 Nev. 326, 328, under section 21 of this article. (22 P. 123.) See Nevada Const. Deb. and Pro., p. 161, cited in State ex rel. Lewis v. Doron, 5 Nev. 400, with reference to this section.

T. C. C. pp. 149. 480.

T. C. C. pp. 239, 240, 241.

The constitutional power of the controller to examine "claims against the state" must be exercised subject to such examination by the examiners.

The examining powers of the board of examiners and of the controller are, with reference to the legislature, only advisory.

So far as the examination of claims against the state is concerned, the board of examiners assist the controller, acting concurrently; but they do not deprive him of his constitutional power, or any part of it. Each moves in a designated sphere, all tending to the desired result; the protection of the revenues of the state. State ex rel. Lewis v. Doron, 5 Nev. 399, 407-410, 413.

The legislative act of 1869 (Stats. 1869, p. 54) is not repugnant to this constitutional provision, nor do the claims therein provided for require action by such boards.

The institution of the board of examiners was not intended as a check on legislative extravagance, but to secure, as a prerequisite to legislative action, an examination of such claims as require such action upon them as claims-not creative action but adoptive or rejective action.

"A claim against the state," is a demand by some one other than the state against it for money or property; but when a claim originates with the state or in its behalf, and contemporaneously with its origin, means and manner of payment are provided, as in case of a bond, it does not then constitute a claim proper against the state but a liquidated and legalized demand against the treasury.

Incidental expenses of the legislature to accrue cannot be held to constitute "claims against the state," nor do they require action by the board of examiners as such.

This constitutional provision has been treated by contemporaneous legislation as inapplicable to legislative expenses.

There is a reasonable doubt as to whether the incidental expenses of the legislature already accrued, constitutionally require examination by the board of examiners; and on the question of the constitutionality of a statute providing for the payment of such expenses without such examination, it cannot on the ground of not providing for such examination be pronounced unconstitutional. State ex rel. Ash v. Parkinson, 5 Nev. 16, 17, 30, 32, 33, 34.

See citation from State ex rel. Lewis v. Doron, 5 Nev. 400, 407, 408, 410, 411, 413, 414, under section 19 of this article.

By this section, the board of state prison commissioners are to have only such supervision over matters connected with the prison as may be provided by law. It is to the statutes, therefore, that we must look for a definition of their powers. State ex rel. Fox v. Hobart, 13 Nev. 420.

This section does not direct or permit the legislature, under the pretense of regulating the discipline of the prison, to wipe out and destroy the previous sentences, or any portion thereof, imposed upon the prisoners by the courts. The legislature can pass only such acts as are authorized by the constitution. It can not infringe upon any of its provisions. Ex Parte Darling, 16 Nev. 100 (40 A. R. 495).

In construing the provisions of section 8 of the act providing for a special election (Stats. 1889, p. 14), and the act to provide for the payment of such election by the state (Stats. 1889, p. 21), the provisions of this section, and the statute in relation thereto (Gen. Stats. 1895-6): Held, that it was the duty of the state board of examiners to audit the claims of the respective counties against the state on account of the special election, and that it was not within the power of the legislature to confer this authority elsewhere: Held, that mandamus would not lie against the state controller to compel him to issue a warrant in

any greater amount than audited and allowed by the board of examiners. State ex rel. County of Lyon v. Hallock, 20 Nev, 326, 328 (22 P. 123).

"An act to provide relief for H. C. Cutting" (Stats. 1897, p. 21) appropriated a sum of money to said Cutting for services rendered to the state as ex officio curator of the state museum. It was contended that, as the claim for services was not presented to the board of examiners prior to the passage of the enactment by

Officers to perform prescribed duties.

the legislature, it was in violation of this section: Held, that the act appropriates the sum of money for services rendered as ex officio curator of the state museum and is, therefore, compensation of an officer fixed by law and is expressly exempted by the terms of the constitution. State ex rel. Cutting v. La Grave. 23 Nev. 387, 389 (48 P. 370).

Cited State ex rel. Perry v. Arrington, 18 Nev. 416 (4 P. 735).

Judicial power vested.

T. C. C. pp. 152. 481, 486.

We see no constitutional objection to members of the executive branch being charged with the duty of assessing property, or of acting upon the board of equalization, for neither of these functions has been, expressly or impliedly, placed by the constitution upon either of the other departments: for certainly, although in equalizing valuations a board may act in a judicial capacity, the constitution nowhere contemplates that the judicial department, as organized by this article, shall discharge that duty. Sawyer v. Dooley, 21 Nev. 396 (32 P. 437).

This section restricts section 9 of this article, by which the jurisdiction of municipal courts cannot be extended beyond municipal purposes. Meagher v. County of Storey, 5 Nev. 244, 249.

The words "municipal purposes only," restrict the jurisdiction to be exercised by municipal courts to such matters as relate to the affairs of the incorporated cities or towns, where alone they are authorized to be established.

The authority sought to be conferred on city and town recorders by section 38 of an act concerning courts of justice (Stats. 1864-5, 116) to "exercise the duties of committing magistrates." etc., is completely judicial in its character, and said section, in so far as it authorizes city and town recorders "to possess the powers and exercise the duties of committing magistrates." etc., is unconstitutional and void. Meagher v. County of Storey, 5 Nev. 244, 249.

Supreme Court, how constituted.

Cited, State ex rel. Coffin v. Atherton, 19 Nev. 336, 343 (10 P. 901).

This section vests the judicial power in a supreme court, district courts, and justices' courts. Section 6 gives the district courts original jurisdiction in all criminal cases not otherwise provided for by law, and gives them appellate jurisdiction in cases arising in justices' courts, etc. Section 8 authorizes the creation of justices' courts by the legislature, and provides that such courts shall have such criminal jurisdiction as may be prescribed by law.

The act of January 26, 1865 (Stats. 1864-65, p. 110. c. 194) gives justices' courts jurisdiction of all misdemeanors punishable by fine not exceeding $500 or imprisonment not exceeding six months, or both. Relator was indicted in the district court for a misdemeanor, punishable by a fine not exceeding $200, or imprisonment not exceeding three months, or both, and brings prohibition to prevent the district court from taking original jurisdiction of the offense, claiming that it has only appellate jurisdiction. Held, that under section 6, giving the district court jurisdiction in all criminal cases not otherwise provided for by law, where the legislature gave justices' courts jurisdiction of the class mentioned, the district court was deprived of original jurisdiction in such cases, and had only appellate jurisdiction, so that it could not try such a case by indictment. Moore v. Orr, 30 Nev. 458, 460 (98 P. 398).

T. C. C. pp. 155, 482, 486.

Justices, election, term, Chief Justice.

The exercise of such authority is based upon the presumption that jurisdiction in divorce cases carries with it by implication the incidental power to make such allowances. The power is indispensable to the proper exercise of jurisdiction in guarding the rights of wives. Lake v. Lake, 17 Nev. 230, 238 (30 P. 878).

The court, under the Practice Act, has jurisdiction only in cases commenced in and tried by a court. The legislature may enjoin upon a judge the performance of judicial functions, in matters outside of actions or proceedings in court; but, in such cases, there is nothing in the statutes authorizing an appeal from his orders.

No appeal lies to the supreme court from an order of the district judge requiring the county assessor of Esmeralda County to file in the district court a statement of taxes, as required by section 6 of the act of March 1, 1883 (Stats. 1883, 100). The proceedings required by the statute were in no sense court proceedings, as such, and the fact that the order was made by the court instead of the judge, does not change its character. Lyon County v. Esmeralda County, 18 Nev. 166, 169 (1 P. 839). Substantial compliance with statutes regulating criminal appeals is essential to the supreme court's jurisdiction of an appeal.

Under the constitution, providing that the supreme court shall have appellate jurisdiction on questions of law alone in criminal cases, and that the right of trial by jury shall remain inviolate, the supreme court will not determine questions of fact on which a verdict is based. The statutory appeal from a judgment of conviction and from an order denying a new trial clothes the supreme court with power to review every question affecting the rights of accused, provided substantial compliance is had with the statutes.

An "appeal" is a statutory right, and is the continuation of the original suit; while a "writ of error" is an independent action, in the nature of a new and original suit.

Whether one convicted of crime is entitled to have the judgment reviewed on writ of error cannot be determined on a petition for a rehearing after the dismissal of his appeal, but only on appropriate proceedings for the writ. when all parties interested can be heard. State v. Preston, 30 Nev. 301, 308-310 (95 P. 918).

CERTIORARI.

Certiorari lies to annul a justice court judgment, void because in excess of the jurisdiction of a justice court, since there is no right of appeal.

The court, on appeal from an order dismissing a writ of certiorari to annul a justice court's judgment, void because beyond the justice court's jurisdiction, cannot on the offer of respondent remit a part of the judgment and limit it to a sum within the jurisdiction of a justice court. Fitchett v. Henley, 31 Nev. 327 (102 P. 865).

In certiorari cases the judgment roll is preserved in the court granting the writ, as in a court of original jurisdiction in an ordinary action, and a copy only of the judgment is sent to the inferior tribunal.

If proceedings of an inferior court are annulled on certiorari there is no further positive or affirmative action to be taken by the inferior tribunal. Leonard v. Peacock, 8 Nev. 157.

Proceedings upon certiorari for the review of the action of an inferior tribunal are of an appellate nature, though not pursued in the ordinary and technical form of appeal.

Where the supreme court on certiorari annuls the proceedings of a district court, under which the relator had been turned out of possession of certain property: Held, that in addition to annulling the proceedings of the court below, the supreme court could properly issue a writ of restitution to restore relator to possession, such writ being necessary and proper to the complete exercise of its appellate jurisdiction. Peacock v. Leonard, 8 Nev. 247.251.

Certiorari does not lie where there is an appeal. Leonard v. Peacock, 8 Nev, 157, 161.

As a justice of the peace has no jurisdiction of an action of forcible entry, a district court has no jurisdiction thereof on appeal; and its proceedings and a judgment to the contrary will be annulled on certiorari. Peacock v. Leonard. 8 Nev. 84. 88.

See Andrews v. Cooke, 28 Nev, 265, 269, under section 4 of this article (81 P. 303),

The inquiry on a writ of certiorari will not be extended further than to determine whether the inferior tribunal has jurisdiction to make the orders complained of; and, if the record discloses that it has complete jurisdiction, any error in an order will not be considered.

Where the court has jurisdiction of divorce action, and has discretion to make such an allowance to the wife as the circumstances warrant pendente lite, the supreme court will not annul such an order by writ of certiorari.

If the district court refuses to try a cause on the ground that it has no jurisdiction, and it appears that the court has jurisdiction, the writ of mandamus will be issued to compel the court to hear and decide the cause upon the merits. Floral Springs Water Company v. Rives, 14 Nev. 431.

The writ of mandamus will not be issued to compel a district judge to try an action for malicious injury to real estate, transferred from a justice court, because the district court has no jurisdiction of the offense. State ex rel. Murphy v. Rising, 10 Nev. 97.

The writ of mandamus will not be issued in any case where petitioner has a plain, speedy and adequate remedy at law. Mayberry v. Bowker. 14 Nev. 336. 340, from opinion of Beatty, C. J., dissenting, on p. 340.

QUO WARRANTO.

Where the attorney-general refuses to bring an action under the provisions of section 3342, General Statutes, authorizing such officer to proceed against any person he has reason to believe unlawfully holds a public office, a person claiming election to a state office may, by leave of court, bring quo warranto on his own relation, where he has no other remedy.

Quo warranto is the only remedy a person, who may be duly elected to a state office, has to oust one unlawfully holding the same, and have himself instituted. State ex rel. McMillan v. Sadler, 25 Nev. 131, 165 (83 A. S. 573, 58 P. 284).

As the supreme court is authorized to finally construe the laws, and is empowered by the constitution and statute to issue writs of mandamus "to compel the performance of an act which the law specifically enjoins as a duty resulting from an office, trust or station,” and as the lieutenant and acting governor is in no way excepted from these provisions or empowered to abrogate the statute, a writ of mandamus will issue directing him to comply with the requirement of the act of the legislature and accept the bonds, the same as a writ would issue requiring any other officer or person to perform in compliance with the statute, a ministerial act, where no discretion is imposed and no constitutional provision is infringed.

The constitution authorizes the issuance of writs of mandamus regardless of the value involved. Value need not be proven in advance by the petitioner in order to entitle him to a writ of mandate.

Doubtful questions relating to the legality or validity of, or right of recovery upon bonds, or to their repudiation, or the statute of limitations, and which may be properly tried and adjudicated in an action between the holder and the obligor, need not be determined in the absence of the obligor in a proceeding for a writ of mandate requiring their acceptance by the chief executive preliminary to the bringing of a suit for the recovery of a judgment upon them against the obligor. It is not the duty of the chief executive, nor of the courts upon application for writ of mandate to determine these questions in advance and possibly adversely to the acceptance of the bonds by the state and to their validity so as to set aside the statute and will of the legislature, prevent a suit, and deprive the proper tribunal, the Supreme Court of the United States, from passing upon the objections made to the legality of the bonds.

If the court has any jurisdiction to refuse the writ of mandate relating to a matter concerning the public interest, where a party is clearly entitled to it, it ought not to exercise that discretion by refusing the writ when such refusal would abrogate the plain language of the statute. State ex rel. White v. Dickerson, 33 Nev. (113 P. 106, 109, 111, 115, 117).

PROHIBITION.

The order of prohibition may issue from this court in a proper case to arrest the progress of a trial. But such order should not issue where there is other and adequate remedy.

The office of such writ is not to correct errors, but to prevent courts transcending the boundaries of their jurisdiction.

Upon a writ of prohibition we cannot review an interlocutory order made in the court below. That can only be reviewed on appeal from the final judgment. Low v. Crown Point Mining Co., 2 Nev. 75, 77.

If the district court did not have power to proceed originally by indictment in a criminal case, prohibition is the proper remedy to prevent it from taking jurisdiction. Moore v. Orr. 30 Nev. 458 (90 P. 398).