He owes allegiance to the two departments, so to speak, and within their respective spheres must pay the penalties which each exacts for disobedience to its laws. In return, he can demand protection from each within its own jurisdiction."

Upon these authorities, and on principle, it is clear that the pleas are bad. The defendants have never been tried for the offense charged in this indictment. For either, the state court before which they were tried had no jurisdiction in the premises, and then the proceeding set forth in the pleas was a nullity, or if it had, it was of an offense against the law of the state and not the United States. But after all, the most serious argument in support of this defense has been the hardship of being compelled to submit to two trials for one act. But that is no defense to the indictment, however much, in a proper case, it might operate to prevent the finding or prosecution of a second one therefor. As was said by Mr. Justice Daniel, in Fox v. Ohio, supra, 435, in reply to the same suggestion: "It is almost certain, that in the benignant spirit in which the institutions both of the state and federal systems are administered, an offender, who should have suffered the penalties denounced by the one, would not be subjected a second time to punishment by the other, for acts essentially the same, unless, indeed, this might occur in instances of peculiar enormity, or when the public safety demanded extraordinary rigor."

And again, it must be borne in mind that the policy of the state and the United States may be and sometimes is at variance on a given subject. In such case, the former may indirectly hinder or defeat the policy of the latter, if a trial in its courts for a crime growing out of an act which also constitutes a crime against the United States can be used as a bar to a prosecntion of the offender in the national courts. For instance, the United States, under the fifteenth amendment, may punish any one who discriminates against the exercise of the elective franchise by another, on account of color: U. S. v. Reese, 92 U. S., 217. But if the state may also declare such an act a crime, it may purposely affix a mere nominal punishment thereto, and thus give any one guilty of such an act an oppor tunity to seek refuge in its tribunals, before the United States can reach him, and by a trial and acquittal therein, at the hands of a sympathizing jury, or the imposition of a mere nominal punishment, effectually prevent the United States from prosecuting the offender in its own courts, and inflicting such punishment upon him as may be necessary to vindicate its authority and maintain its policy in the premises.

Indeed, if a trial and acquittal or punishment in a state court, under such circumstances, is a bar to a prosecution in this court, for the crime of which these defendants stand indicted herein, it is difficult to see why a pardon by the governor of the state would not have the same effect.

In short, it is impossible that the United States can maintain its paramount authority over the subjects committed by the constitu

tion to its jurisdiction, and at the same time allow a trial in a state court on a criminal charge growing out of an act that congress has defined to be a crime, to be a bar to a prosecution therefor, in its own courts and according to its own laws.

The demurrers to the pleas are sustained; and the defendants are put to plead to the indictment-guilty or not guilty.

SUPREME COURT OF NEVADA.

STATE, EX REL. ESMERALDA COUNTY V. THIRD DISTRICT COURT.

Filed December 8, 1884.

CERTIORARI-JUDICIAL OFFICER MINISTERIAL ACTS OF.-The action of a judicial officer in regard to matters which are exclusively executive or legislative in their nature, even when the statute requiring the performance of such matters is unconstitutional, cannot be removed by certiorari.

THE SAME-APPORTIONMENT OF DEBT OF ESMERALDA COUNTY-ACTS OF DISTRICT JUDGE. -The acts required to be performed by the district judge in determining the amount of the indebtedness of Esmeralda county to be assumed and paid by Lyon county, under the act of 1883, are not judicial in their nature, and cannot be reviewed by certiorari.

APPLICATION for writ of certiorari. The opinion states the facts. D. J. Lewis, District Attorney, and Wells & Taylor, for the petitioner.

W. E. F. Deal, for the respondent.

HAWLEY, C. J. Petitioner claims that the act annexing a portion of Esmeralda county to Lyon county (stats. 1883, 99), is unconstitutional, in this, that it imposes duties upon the district judge (sec. 6), that are not judicial in their nature, in contravention of article III of the state constitution; that, inasmuch as the boards of county commissioners failed to act within the time prescribed by section two, the entire provisions of the act are absolutely null and void.

Respondents contend that if the acts conferred upon the district judge, by the sixth section, are not judicial in their nature, they cannot be reviewed by this court, in this proceeding. The language of the statute relating to the writ of certiorari is clear and plain and fully sustained the position contended for by respondents.

This writ may be granted on application by any court of this state except a justice's or recorder's or mayor's court; the writ shall be granted in all cases where an inferior tribunal, board or officer, exercising judicial functions, has exceeded the jurisdiction of such tribunal," etc.: 1 Comp. L., 1,497.

The act under consideration, requires the county of Lyon to assume and pay a portion of the indebtedness of Esmeralda county as a just and fair compensation for the territory detached, and it specifically provides the method by which the amount shall be ascertained. The ascertainment of this amount does not involve any examination or weighing of testimony, or any determination of any

principle of law, or the exercise of any discretion or judgment. The act provides that "the county of Lyon shall assume and pay to the county of Esmeralda, as its portion of the debt assumed on the annexation of the territory detached by this act, such an equal and proportionate amount of the indebtedness of Esmeralda county as the taxable property in said detached and annexed territory, as shown by the assessment roll of Esmeralda county for the year eighteen hundred and eighty-two, bears to the payment of the entire debt:" Section 2.

In performing this duty the district judge was not required to exercise any judicial functions: People v. Alameda Co., 26 Cal.,

248.

The duties performed by the district judge, in pursuance of the statute, did not become judicial acts merely because they were performed by a judicial officer. It has often been deemed that the action of a judicial officer in regard to matters which are exclusively executive or legislative in their nature, even when the act of the legislature requiring such duties to be performed is in violation of the constitutional provision, cannot be reviewed by certiorari. Under the laws of this state we are only authorized to review the record and proceedings of inferior courts, officers or tribunals, acting in a judicial capacity and exercising judicial functions.

The acts required to be performed by the district judge, in the event of the boards of county commissioners failing to agree, are not of such a judicial nature or character as to authorize this court to review them upon certiorari: People v. Board of Education, 54 Cal., 377; Salino Co. v. Petitioners, 45 Mo., 55; People v. Supervisors, 43 Barb., 234; People v. Bush, 40 Cal., 345; Spring Valley W. W. v. Bryant, 52 Cal., 138.

The writ should, therefore, be dismissed.
It is so ordered.

PROCEEDINGS IN INFERIOR COURTS-JURISDICTION MUST APPEAR OF RECORD.-In procee d ings in inferior courts the facts conferring jurisdiction and the power to act in a given case must affirmatively appear upon the face of the record.

COUNTY ROADS-PROCEEDINGS TO OPEN-TERM OF COUNTY COURT.-The proper time for the county court to consider the report of the viewers, in proceedings to open a county road, is during the regular term of the court next ensuing after the plat and survey of said road have been delivered to the county clerk, and not during a special term. A claim for damages filed during such regular term is in time.

APPEAL from Clackamas county. The opinion states the facts.
J. K. Kelly, for the appellant.

T. R. McBride, for the respondent.

LORD, J. By the act approved October 26, 1874, four terms of the county court of Clackamas county were required to be held, to wit: On the first Monday in January, April, July and September in each year, and this act was in force until it was repealed in October,

1882.

On the fifth day of September, 1881, a petition was presented to the county court to appoint viewers to view and lay out a connty road as described in the records.

On the same day the viewers were appointed and required to meet on the twenty-fourth day of September, to view and locate the road, "and to report in writing at the next term of this court."

On the ninth day of September, an order in the following words was entered in the minutes of the county court:

"The judge thereof, during this term time, by general order, hereby made and entered of record, does hereby appoint the third Monday in October, the seventeenth day of October, as a term of court, commissioners attending for the purpose of transacting county business."

A report, in favor of establishing a road, was made by two of the viewers. It is dated October, 1881, but has no date of filing on it. The road, as laid out by the viewers, passes through the donation claim of D. D. Tompkins, the defendant, from the southern to the northern boundary, which, before the road was laid out, was an inclosed pasture field.

On the seventeenth day of October, 1881, the report of the viewers was read a first time, and on the eighteenth day of October, it was read a second time, and then the report of the viewers was confirmed, and the road established in conformity therewith.

On the fifth day of January, 1882, the first day of the next regular term of the county court, D. D. Tompkins, the defendant, filed his claim for damages, on account of the injury he would sustain, by the opening of the road, amounting to two thousand five hundred dollars. This claim was rejected by the court, on the ground that it ought to have been presented at the appointed term of the county court, held on the seventeenth day of October, 1881.

The simple question for this court to decide is, whether the appointed term of the county court, held on the seventeenth day of October, 1881, or the regular term fixed by law on the first Monday of January, 1882, was the proper time to consider the report of the viewers.

The statute provides that the plat and survey of said road or alteration shall be delivered to the county clerk by one of the viewers, on or before the third day of the session of the county court, then next ensuing; and it shall be the duty of the county court, on receiving the report of the viewers aforesaid, to cause the laws to be read on two different days of the same meeting; and if no petitions for damages be filed, the court shall, etc:" Statutes of Oregon, p. 723, sec. 5.

* * *

When the statute speaks of terms, the terms constituted by law are meant, not special terms, appointed by the court: Commonwealth v. Sessions of Norfolk, 5 Mass., 435; South v. Cutter, 10 Wend., 590.

Besides, the record shows that on the ninth day of September, 1881, the Judge, and not the court, acting as a board of commissioners, appointed a term of court to be held on the seventeenth of October. It does not appear that the commissioners were present, or that they concurred in such appointment, and, in fact, it does not appear from the record that the court appointed a term to be held on October 17. It was settled that a court of inferior jurisdiction must show by its record, its authority to act in the particular case, or as it is sometimes expressed, the facts conferring jurisdiction and the power to act in the given case must affirmatively appear upon the face of its record.

Now, when it is considered that it is an inferior court proposing through the device of a mere technicality to appropriate the land of a private citizen for a public road and without compensation and in invitum, every consideration of public justice and constitutional right requires that the power or jurisdiction of the court in the premises should be without objection. Certainly if the property of the individual is to be taken without compensation by a mere technicality, the record of the proceeding of the court by which it is done should be beyond the reach of a similar objection.

Now, when the defendant appeared at the regular term of the court in January, 1882, and filed his petition for damages, it was found then that the record did not disclose that the special term of which he had no notice, had not been appointed regularly, and to cure that defect, and cut off his claim for damages at the next regular term in April, a nunc pro tunc order was made to cure the defect of the order of September 9, 1884. Can the defendant's rights be taken away in this manner? If they can, then an order of no force, and which is impliedly admitted, may be amended by a nunc pro tunc order, so as to be held that notice was given, and thus violate the constitutional rights of the citizen by condemning his property without a hearing, and without compensation. We do not think that a nunc pro tunc order will be made except in furtherance of justice. Freeman on judgments says: "The failure of a court to act, or its incorrect action, can never authorize a nunc pro tunc entry if no judgment be rendered, or if an imperfect or improper one be rendered, the court has no power to remedy any of these errors by treating them as clerical mistakes." Such an order applies only to correct a record between parties, not to correct or change an order of the court, in relation to its own proceedings, by which injustice will result by depriving a party of his property without compensation or a hearing.

The judgment is reversed.
WALDO, C. J., concurred.