that the three things-the purchase, management and loan-were dependent parts of one whole.

But, as, in my view of the matter, the plaintiff is not entitled to the relief sought, irrespective of this question, I do not further consider it; and if the parties wish to rescind on such terms, they can do so without the aid of the court.

There is no equity in the bill, and it must be dismissed; and it is so ordered.

SUPREME COURT OF NEVADA.

STATE, EX REL. ATTORNEY GENERAL, v. HARRIS ET AL.

Filed Novmber 7, 1885.

"

ELECTION OF TRUSTEES-CONSTITUTIONAL LAW-TRUSTEES FOR FIVE YEARS.-The provision of the school law of 1885, declaring that the term of trustee shall be five years in boards of five trustees, is in conflict with the constitutional prohibition declaring that "the legislature shall not create any office the term of which shall be longer than four years.' Such being the case, the entire act fails, as it must be presumed that the legislature intended to establish a general plan for the election of school districts throughout the state, and as otherwise two systems would prevail.

APPLICATION for quo warranto. The opinion states the facts.
H. F. Bartine, for the relator.

A. C. Ellis, for the respondents.

BELKNAP, C. J. This is a proceeding by quo warranto, to determine whether the school trustees elected under the school law of 1885: Stats. 1885, 111; or those elected under the amendatory law of 1873, are rightfully entitled to the office of school trustees of Genoa school district No. 2. The controversy arises upon the provisions of section 2 of the act of 1885. The section is as follows:

"Sec. 2. An election for school trustees must be held in each district on the second Saturday of May of each year, at the district school-house, if there be one; and, if there be none, at a place designated by the board of trustees. First: The number of school trustees for any school district shall be three, except when the number of census children of the preceding year exceeds four hundred, then the board of trustees shall consist of five members. Second: In new school districts, or in case of vacancy for any cause in an old one, the school trustees shall be elected to hold office for one, two and three years respectively, from the first day of September next succeeding their election. Third: Except as provided in subdivision second of this section, one trustee shall be elected annually, to hold office for three years where there are three trustees, and for five years where there are five trustees, or until his successor shall be elected and qualified:" Stats. 1885, 112.

It is admitted that the provision which declares that the term of trustee shall be five years in boards of five trustees, is in conflict with the constitutional prohibition declaring that "the legislature shall not create any office, the term of which shall be longer than four years," except as otherwise provided by the constitution: Const., art. 15, sec. 11; but it is insisted that the general provisions of the act may be enforced in school districts of three trustees when the maximum term of office is three years, because this provision is constitutional, and that as to school districts of five trustees, elections may be held under the old law of 1873, in lieu of the unconstitutional clause.

If the clause providing for the election of five trustees be stricken out, and trustees for districts containing upwards of four hundred census children be elected under the law of 1873, as suggested, the intention of the legislature would be departed from in the following respects: 1st. In school districts of upwards of four hundred census children, one trustee would not retire from the board of trustees each year. 2d. The election of trustees in such districts would take place at the general biennial election, and not during the month of May of each year. 3d. The full term of office in districts of three trustees would be three years, and in other districts two and four years. 4th. An election in one class of districts would occur annually in the month of May, and, in the other class, biennially, at the general election.

An unconstitutional provision will not invalidate an entire enactment of the legislature, unless the obnoxious portion is so inseparably connected with the other that it cannot be presumed the legislature would have passed the one without the other.

"It is true," said the supreme court of California in Lathrop v. Mills, 19 Cal., 513, "that the constitution merely interdicts acts which oppose its provisions, and that if in any act there be found a provision which is constitutional, that provision may be carried out, provided the excepted provision is entirely disconnected from the vicious portions of the act, and the legislature is presumed to intend that, notwithstanding the invalidity of the other parts of the act, still this particular section shall stand. The saving of the particular provision, even when not upon its face unconstitutional in such instances, is, therefore, a matter of legislative intent. In order to sustain the excepted clause, we must intend that the legislature, knowing that the other provisions of the statute would fall, still willed that this particular section should stand as the law of the land."

Applying these principles, there is nothing in the provisions referred to suggesting an intent upon the part of the legislature that any particular portion of the law of 1885 should stand, regardless of the constitutional defects of other portions. If portions were selected out and upheld, two different systems for the election of school trustees would prevail, whereas the legislature apparently intended to establish a plan which should be general throughout the

No. 99-2.

state. Such intent enters so entirely into the scope of the law that upon no principle would a court be warranted in upholding separate provisions of the act.

The provision of the law under which respondents, M. Harris, J. Jones and F. Klotz, claim the office of school trustees of Genoa school district No. 2, being unconstitutional and void, a judgment of ouster must be entered against them, with costs. And it appearing that J. Q. Adams, H. Vansickle and J. S. Childs were lawfully elected school trustees of said school district, at a general election held upon the fourth day of November, 1884, and thereafter qualified and entered upon the performance of their duties as said school trustees, and continued therein, except as interrupted by respondents, a judgment declaring said Adams, Vansickle and Childs the lawful school trustees of said school district must be entered. It is so ordered.

ALBION CON. MG. Co. v. RICHMOND MG. Co.

Filed November 9, 1885.

NEW TRIAL-AFFIDAVITS USED ON MUST BE IDENTIFIED.-Affidavits used on a motion for a new trial will not be considered on appeal, unless the same are endorsed by the judge or clerk at the time, as having been read or referred to on the hearing of the motion.

EVIDENCE-MODEL, MAP OR DIAGRAM USED FOR ILLUSTRATION NO PART OF.-A model, map or diagram of the locus in quo, used on the trial simply for the purpose of illustrating the testimony of the witnesses, and which are not introduced in evidence, are not part of the evidence which should be embodied in a statement on appeal.

STATEMENT ON APPEAL-DEEDS NEED NOT BE COPIED IN EXTENSO.-Deeds, and other muniments of title, need not be copied in extenso in a statement on appeal. A brief statement of their substance is sufficient when no point is made on the construction of the language used therein.

REVERSED JUDGMENT NO PART OF JUDGMENT ROLL.-A judgment of the district court, which has been reversed on appeal, forms no part of the judgment roll, and need not be introduced in evidence therewith.

NEW TRIAL EVIDENCE REVIEWED. The evidence as to the value of the ore removed by the appellant from the respondent's mine reviewed at length, and held, that the verdict of the jury was not sustained thereby, and that a new trial was properly ordered.

APPEAL from an order of the sixth judicial district court, Eureka county, granting the plaintiff a new trial. The opinion states the facts.

Wren & Cheney, for the appellant.

Baker & Wines and Stewart & Herrin, for the respondent.

HAWLEY, J. On the twenty-first day of October, 1873, E. H. Rose and others commenced an action in the district court of Eureka county, against the Richmond company, appellant herein, to determine the right of possession to certain mining ground. A trial of that case in 1881, in the district court, resulted in a judgment for the Richmond company from which Rose took an appeal to this court. The real controversy in that action, depended upon the question of the validity of the Uncle Sam location, owned by Rose et al., and of the St. George and Victoria locations, and

patents therefor from the United States, owned by the Richmond company. This court declared the St. George and Victoria patents to be "absolutely null and void," and directed the district court to render a proper judgment in favor of Rose ei al., for the mining ground westerly of the line "A. C." as designated upon the diagram in evidence in that case: Rose et al. v. Richmond Mining Company of Nevada, 17 Nev., 25. An appeal was taken from this decision to the supreme court of the United States and that court on the fourth of May, 1885, affirmed the decision of this court: Richmond Mining Co. v. Rose et al., 114 U. S. Rep., 576.

The present action was brought to recover damages for the value of the ore alleged to have been taken by the Richmond company from the mining ground west of the line "A. C." The complaint alleges that nine thousand two hundred and eight tons of ore were extracted and removed by the Richmond company, of the value of sixty-five dollars per ton, amounting to the sum of five hundred and ninety-eight thousand five hundred and twenty dollars. It is further averred that by the working of the mine plaintiff was damaged in the sum of ten thousand dollars, making a total of six hundred and eight thousand five hundred and twenty dollars.

The jury before whom this cause was tried, found a verdict in favor of plaintiff for thirteen thousand two hundred and fifty dollars. The plaintiff being dissatisfied with this verdict, moved the district court for a new trial which was granted upon two grounds, viz.: (1) "Insufficiency of evidence to justify the verdict." (2) "Irregularity of the defendant by which plaintiff was prevented from having a fair trial."

This appeal is taken by defendant from the order of the district court granting a new taial.

1. The question whether there was any irregularity upon the part of appellant, was, upon motion of appellant, eliminated from the case. It was presented upon affidavits which were not indorsed by the judge or clerk "at the time as having been read or referred to on the hearing" of the motion for new trial: Stat. 1,869, 227, section 197; and upon the authority of Dean v. Pritchard, 9 Nev., 232, the affidavits were stricken from the statement on appeal.

2. Appellant contends that the question whether the court erred in granting a new trial upon the ground of insufficiency of the evidence to sustain the verdict, cannot be considered because the statement, notwithstanding the recital therein, that "the above and foregoing testimony was all the evidence offered and received in said action," affirmatively shows that it does not contain all the evidence. This contention is based upon the fact that the statement shows that a glass model of the mining ground was used at the trial in the district court to illustrate the testimony of the witnesses, and that certain maps and diagrams were referred to by the witnesses which are not made a part of the statement on appeal: It is argued that without the model, maps and diagrams, a portion of the testimony will be unintelligible to this court. It does not appear, from the

statement, that the model, maps or diagrams, or either of them, were offered in evidence, hence, they were properly excluded from the record on appeal....

Upon the trial.of important mining cases, it is quite frequently the custom of litigants to exhibit a model of the mine to be used in the court room instead of asking for an order to have the jury take a "view of the premises," the models being constructed in such a manner as to show the various levels, drifts, tunnels, excavations, ore bodies, and such other matters as may be in controversy, and to enable the witnesses to illustrate their testimony by a reference thereto. Before these models came in vogue it was, and if a model is not used it is still, occasionally the practice to allow the jury to view the premises for the purpose of enabling them the better to comprehend the testimony of the witnesses; but the courts have never held that such a view was a part of the evidence in the case which must be included in the statement on appeal. It is allowed for the purpose of enabling "the jury, by the view of the premises or place, to better understand and comprehend the testimony of the witnesses respecting the same, and thereby the more intelligently to apply the testimony to the issues on trial before them, and not to make them silent witnesses in the case:" Close v. Samm, 27 Iowa, 508; Wright v. Carpenter, 49 Cal., 609.

If the model is intended to establish any independent fact and is introduced in evidence and used in the court below for that purpose, provision should be made to have it brought before the appellate court. In the present case, the model was not intended to establish any fact, and was not used for any such purpose. If the maps and diagrams had been offered in evidence, they should have been embodied in the statement on appeal; but the fact is that they-like the model-were only used for the purpose of illustrating the testimony of the witnesses, and as they were not introduced to establish any fact in the case, it was unnecessary to offer them in evidence.

In People v. Cochran, the court said: “A diagram is not a public nor private writing, nor is it made by law primary or secondary, or prima facie evidence of any fact or object represented by it. When used on the trial of a case, it is not used as evidence, it does not prove nor tend to prove, in the sense of evidence, any fact; it is simply a figure drawn to suggest to the minds of the jurors the relation between objects about which a witness is testifying, and may be drawn on paper or on a stationary blackboard, which cannot be removed. The very construction of the figure itself is defined by. the testimony of the witness, and, as illustratory of his testimony, it partakes of it, in the same way that the clearness of the expression of the witness partakes of his evidence:" 61 Cal., 552.

The statement recites the fact that "the defendant offered in evidence, for the purpose of showing its good faith in its entry and removal of the ore in controversy, patents from the United States to the Victoria and St. George mining claims, which patents were issued by the government of the United States to the defendant be