STATE ex rel. FOOK LING V. PREBLE.

Filed February 19, 1884.

PURCHASE OF STATE LANDS BY CHINESE.-A citizen and subject of the Chinese empire, who is a bona fide resident of the state of Nevada, is entitled, under the laws of the United States and of such state, to locate or purchase any of the public lands belonging to such state.

PUBLIC POLICY.-No act authorized by the constitution can be said to be against the public policy of the state,

APPLICATION for mandamus. The opinion states the facts.
T. Coffin, for the relator.

Attorney general, for the respondent.

HAWLEY, C. J. This is an application for a writ of mandamus to compel respondent, as surveyor general and ex officio land register of the state of Nevada, to receive the application of relator to purchase certain vacant non-mineral lands belonging to the state of Nevada.

The only question to be determined is, whether a citizen and subject of the Chinese empire, who is a resident of this state, is entitled, under the laws of the United States or of this state, to locate or purchase any of the public lands belonging to the state of Nevada. The constitution of this state provides, that "foreigners who are or who may hereafter become bona fide residents of this state shall enjoy the same rights in respect to the possession, enjoyment, and inheritance of property as nativeborn citizens:" Art. 1, sec. 16.

The rights of foreigners are not confined to those who have declared their intention to become citizens of the United States, or to those who under our laws are entitled to become citizens by naturalization.

The constitution gives to all foreigners who are bona fide residents of this state certain rights, which may be enlarged, but can not be abridged, by the legislature. The rights thus guaranteed by the constitution can not be taken away. It is not within the power of the legislature of this state to limit the right to possess, inherit, or enjoy such property to aliens who may become citizens: State v. Rogers, 13 Cal. 159; McConville v. Howell, 17 Fed. Rep. 104.

It is admitted by the pleadings that relator is a resident of this state, and that he has complied with the laws of this state, and is entitled to the relief he asks unless the fact that he can not become a citizen of the United States deprive him of that right.

We are of opinion that the constitutional provision, above quoted, is conclusive in favor of his right to apply for the lands described in his petition. There are no provisions in the constitution of the United States, or in the existing treaties between the United States and China, which deprives him of that right.

No act authorized by the constitution can be said to be against the public policy of the state.

Let the writ issue as prayed for by relator.

JAMES v. LEPORT.

Filed February 20, 1884.

AFTER AN APPEAL HAS BEEN PERFECTED THE DISTRICT COURT HAS JURISDICTION to settle and allow the statement on appeal filed in the court below within the time required by statute.

APPEAL from a judgment of the second judicial district court for Ormsby county, entered in favor of the defendant. The opinion states the facts.

R. M. Clarke, for the appellant.

A. C. Ellis, for the respondent.

BELKNAP, J. The appeal having been perfected, appellant afterward prepared and filed in the court below the statement on appeal, and the same was settled and allowed by the district judge.

Respondent has entered his written objections to the hearing of the cause upon the merits, and urges that the statement upon appeal be disregarded, upon the ground that it was filed with the clerk and entered by the judge after the district court had lost jurisdiction of the cause by the perfecting of the appeal.

Section 1391, compiled laws, fixes the various periods of time within which appeals shall be taken, varying in length from sixty days to one year from the time of the rendition of the order or judgment. Section 1393, compiled laws, provides that within twenty days after the entry of a judgment or order against a party having the right to appeal, he may file his statement upon appeal with the clerk of the court, and if no amendments be proposed it may thereafter be presented to the judge for settlement without notice to the opposite party.

The right to have a statement of the case annexed to the record of the judgment or order is not made to depend, in terms at least, upon the fact whether an appeal has been taken. It is absolutely awarded to the party having the right to appeal, but must be exercised within the time limited by the statute, and jurisdiction of the case for this purpose is retained by the district court. A contrary construction would abridge the time within which the statement may be prepared in cases depending upon facts similar to those of this case, and would ingraft in the law a condition which the legislature did not expressly introduce and may never have intended.

The case of Flynn v. Cottle, 47 Cal. 527, decided under a similar stat

ute, supports the conclusion we have reached.

Objection overruled, and the case will be placed upon the calendar.

SUPREME COURT OF WASHINGTON TERRITORY,

CITY OF SEATTLE v. BUSBY.

Filed July, 1880.

FAILURE TO NAME AN HOUR IN A NOTICE FOR THE SETTLEMENT OF A BILL OF EXCEPTIONS, when the day for the same has been agreed to by stipulation, is a fault imputable to both parties, and can not be taken advantage of.

BILL OF EXCEPTIONS NEED ONLY CONTAIN SO MUCH OF THE EVIDENCE as is necessary to explain it. What is necessary will depend upon the peculiar circumstances of each case.

A MUNICIPAL CORPORATION IS LIABLE FOR INJURIES RESULTING to a private individual, on account of the negligence of its agents in grading a public street. Nor is it relieved from liability by the fact that such grading is done by a contractor, working under the directions of the city surveyor.

REFUSAL OF THE COURT TO GIVE CERTAIN INSTRUCTIONS AS ASKED is not error when the same are given in substance.

ERROR to the third district court. The opinion states the facts.
Jacobs, Hall & Osborne, for the plaintiff in error.

Larrabee & Hanford, for the defendant in error.

On a motion to strike out the bill of exceptions, the following opinion was rendered:

GREENE, C. J. It is necessary, under chapter 19 of the civil practice act, that a time should be fixed for the settlement of a bill of exceptions not made up and settled on the instant, and that the opposite party to the one who presents it shall have at least three days' notice of the time of settlement, unless the time is fixed by the court or judges. Here, by consent of both parties and the court, a day of settlement was appointed, and the exceptions were settled on that day. Simple naming of a day, without designating a particular hour, might not be enough, where one party was seeking to compel, by notice, the attendance of the other. It seems to us sufficient, however, where the time is determined by stipulation, and the failure to name an hour is imputable to both. How far it is necessary to set out the evidence in order to explain the charge of the judge, under section 261 of chapter 19, will depend in each case upon what the charge is. So much "as is necessary to explain it, and no more," is the statutory measure. In a case like the present, it does not seem to us essential or desirable that the evidence should be set forth in detail or at length. Here it is enough that it appears in the bill of exception that evidence was given that rendered the charge pertinent and intelligible.

So the motion to strike the bill must be denied.

WINGARD and HOYT, JJ., concurred.

Afterwards the following opinion was rendered on the merits:

WINGARD, J. The complaint of Isaac W. Busky, the plaintiff below, is as follows:

Isaac W. Busby, plaintiff, v. The City of Seattle, defendant. No. 2129. Civil action. Damages.

Amended Complaint.-And now comes the plaintiff by his attorneys, with leave of the court, and amends his complaint herein and alleges: 1. That at all the times hereinafter mentioned, and now, the said

defendant was and is a municipal corporation duly organized and existing under and by virtue of the laws of Washington territory.

2. That on the first day of May, A. D. 1876, and from thence continuously until the date of the commencement of this suit, this plaintiff was lawfully in possession, and entitled to have possession of the followingdescribed premises, situated within the corporate limits of the city of Seattle, the defendant herein, and abutting upon the west side of a certain street in said city, called "Front street," to wit, lots seven (7) and eight (8) of block D of A. A. Denny's addition to said city of Seattle, according to the plat of said addition of record, and was, until the injury herein complained of, carrying on his business of miller and dealer in grains, flour, ground feed, etc., upon said premises, having, previously to that time, erected thereon at great expense, to wit, six thousand dollars, buildings suitable for a steam grist-mill and furnished the same with suitable machinery, boilers, engines, and appliances for operating said mill and carrying on said business, and said mill was then and there, all the time, until the happening of the injury hereinafter complained of, propelled by steam, and operated and in use by plaintiff.

3. That between the first day of March, A. D. 1876, and the tenth day of April, 1876, plaintiff, at great expense, to wit, seven hundred dollars, erected upon said premises a certain other building, which he rented to other parties, with the privilege of utilizing the power furnished by the engines and machinery of said mill for the purpose of propelling a turning-lathe and operating a sash and molding factory, at a monthly rental of thirty dollars.

4. That plaintiff did and continued to let said last-mentioned building, and to receive the said rental therefor, and in the use of his said mill, until the injury caused by the defendant's negligence and mismanagement and want of reasonable care and skill, hereinafter alleged and set forth.

5. That between the first day of July, A. D. 1876, and the first day of January, A. D. 1877, said Front street was graded, and opposite to and in the immediate vicinity of plaintiff's said premises filled in and thereby raised considerably above the level of the natural surface in said vicinity, all of which was done by the said defendant and under its direction.

6. That east of said Front street, and in the immediate vicinity of said premises, several natural springs of water issue from the ground, and previous to the grading of said Front street the same flowed past plaintiff's premises into Elliott's bay.

7. That through negligence and from the want of reasonable care and skill in the performance of the work on the part of the said defendant, the work of grading and filling said Front street, opposite plaintiff's said premises, was improperly done in the following particulars, to wit: 1. The natural foundation under said Front street, opposite said premises, was and is too weak and insecure as a foundation to sustain the great weight of earth and cribbing used in filling and raising said street in said vicinity, and said defendant negligently, and from the want of reasonable care and skill, failed to construct any proper or secure foundation for said earth-work and cribbing to rest upon. 2. The said earthwork and cribbing constructed by said defendant, as aforesaid, wholly obstructs the natural flow of the water from the aforesaid springs, and said defendant negligently, and from the want of reasonable care and

skill, failed to construct and provide any conduits or passage-ways for said water, but left the same to flow against and percolate through the aforesaid earth-work and cribbing.

8. That the negligence of the defendant in the particulars aforesaid caused the foundations under the said earth-work and cribbing, and also the foundation under the plaintiff's buildings and mill herein before mentioned, to slide and move westward towards Elliott's bay, thereby rendering it impracticable to operate or use the said engines and machinery in said mill, and rendering said buildings too unsafe for occupancy or

use.

9. That in consequence of the disturbance to the foundations of the said mill and buildings, as aforesaid, plaintiff was obliged to and did on or about the first day of February, A. D. 1878, tear down and remove the buildings mentioned in the third paragraph of this complaint, and he has lost the use and rent thereof since said last-mentioned date, and is now wholly deprived of the same; and for the same cause plaintiff was, between the first day of January, A. D. 1878, and the tenth day of January, A. D. 1879, often hindered in the use of his said mill and in the conduct of his said business, and on the last-mentioned date he was compelled. to, and did for the same cause, entirely suspend his said business and tear down and remove his said mill and machinery, boilers, engines, and appliances, and he has been ever since prevented from carrying on his said business and from operating his said mill, as he was lawfully entitled to do, and should have done all the time aforesaid but for the disturbance of the foundation thereunder, caused by the defendant's negligence and want of reasonable care and skill in performing the work of grading Front street, as aforesaid, to his (the plaintiff's) damage in the sum of three thousand dollars. Wherefore plaintiff demands judgment against said defendant in the sum of three thousand dollars and costs of this suit, and for general proper relief.

L. B. NASH and LARRABEE & HANFORD,
Attorneys for Plaintiff.

The answer to this amended complaint is as follows:
Isaac W. Busby, plaintiff, v. The City of Seattle, defendant. No. 2129.
Civil action. Damages.

Answer to Amended Complaint.-Comes now the defendant by its attorney, J. M. Hall, and in answer to paragraph 2 of plaintiff's amended complaint, says:

1. First, as to whether the plaintiff was in lawful possession, and entitled to have the possession of lots 7 and 8 of block D of A. A. Denny's addition to the city of Seattle, situated on Front street at the time, as set forth in plaintiff's said amended complaint, this defendant denies any knowledge or information thereof, sufficient to form a belief, and therefore demands proof of the same.

And the defendant, further answering as to the matter set forth in said second paragraph, says: As to whether the plaintiff expended the sum of six thousand dollars or any other considerable sum in the erection of buildings on said lots suitable for a steam grist-mill and in furnishing the same with suitable machinery, boilers, and engines, and appliances for carrying on the milling business, this defendant denies any knowledge or information thereof sufficient to form a belief, and therefore demands proof of the same. The defendant, answering as to the matters set forth in the third paragraph of plaintiff's amended complaint, says: