State v. Lambert.

indictment for the same offense; but the pendency of another indictment has never been held to constitute matter in abatement. Commonwealth v. Drew, 3 Cush. 279; Commonwealth v. Murphy, 11 Cush. 472; Commonwealth v. Berry, 5 Gray, 92; Dutton v. The State, 5 Ind. 533. It is unnecessary to the determination of this appeal to decide whether a plea of autrefois acquit or convict would have been a good plea in bar to either indictment in case judgment had been rendered upon. the other. It would seem that the stealing of the property of different persons at the same time and place and by the same act may be prosecuted at the pleasure of the government as one offense or as several distinct offenses. Commonwealth v. Sullivan, 104 Mass. 552; State v. Thurston, 2 McMullan, 382.

The second assignment of error is that, a term of court having intervened between the March and December terms, the time in which to bring an indictment for stealing the property of Pearson had expired under Section 2206. (Comp. Laws.) This section reads: "When a person has been held to answer for a public offense, if an indictment be not found against him at the next term of the court at which he is held to answer, the court shall order the prosecution to be dismissed, unless good cause to the contrary be shown." The record does not show that the defendant was within the provisions of the statute, but, if he were, this fact would have no bearing upon the indictment. object of this section is the protection of the citizen from imprisonment upon insufficient cause. A dismissal of the indictment would not have barred another prosecution for the same offense. Sec. 2211 (Comp. L.)

The

Lastly, it is objected that the testimony of Butler, an accomplice, is not corroborated. His testimony is corroborated by Finley, who saw defendant at the "Fifteenmile House," driving horses from the locality of the larceny at the time testified to by Butler. At Indian Springs, fifteen

State ex rel. Corey v. Curtis.

miles farther on the road, Parker saw defendant, and identifies some of the stolen horses at that time in his possession. St. Clair testifies that the defendant and Butler stopped in Cave Valley and sold some of the horses that were afterwards identified as stolen; and the arresting officer found the property at a ranch, known as that of the defendant. This testimony tends to connect the defendant with the offense, and this is all the statute requires. State V. Chapman, 6 Nev. 320; People v. Melvane, 39 Cal. 614.

v.

The judgment and order refusing a new trial are affirmed.

THE STATE OF NEVADA ex rel. J. C. COREY v. SAMUEL T. CURTIS.

BY-LAWS OF MINING COMPANY-ADOPTION BY LONG USE. Where what pur ported to be the by-laws of a California mining corporation, though adopted by the stockholders instead of the trustees, appeared to be the only by-laws ever adopted by the corporation and were found properly recorded in the books kept by the trustees and had been used, acted upon andreferred to as the by-laws, both by the trustees and stockholders, for upwards of ten years and ever since their adoption: Held, that they were to be considered and treated as the regular by-laws of the corporation. ELECTION OF MINING COMPANY TRUSTEE A CORPORATE ACT. The election of a trustee of a mining corporation to fill a vacancy is a corporate act and must be exercised in the manner required by the charter.

CORPORATION CANNOT MAKE BY-LAWS CONTRARY TO CHARTER. Where the statute under which a corporation was organized required a majority of the trustees to do a corporate act and a by-law authorized a vacancy in the office of trustee to be filled by a less number than a majority: Held, that such by-law, being contrary to the charter, was void.

MINING COMPANY ELECTIONS-EXTENT OF REGULATION BY BY-LAWS. Under the California laws in reference to mining corporations, the manner of an election of a trustee may be regulated by the by-laws; but the substance must be in conformity with the statute.

State ex rel. Corey v. Curtis.

WHEN BY-LAW, PARTLY VOID, IS WHOLLY VOID. If part of a by-law is void and the whole forms an entirety, so that the part which is void influences the whole, the entire by-law is void.

WHEN STATUTE VOID IN PART AND VALID IN PART.

may be void in part and valid in part applies portions are wholly independent of each other.

The principle that an act only when the respective

OFFICER "DE FACTO," WHAT. An officer de facto is one who has the reputation of being the officer he assumes to be, who has the apparent right and performs the duties of the office under claim and color of right and yet is not a good officer in point of law.

OBJECT OF SUSTAINING ACTS OF OFFICER "DE FACTO." The principle of sustaining the acts of an officer de facto is designed as a shield for the protection of the public and of third persons, who are not cognizant of the facts nor bound by any rule of law to inquire into the title by which he exercises the office.

LIMITATION OF PRINCIPLE SUSTAINING ACTS OF OFFICER "DE FACTO." The principle of sustaining the acts of a person acting as an officer as those of an officer de facto ought not to be extended to cases where the rights of the public are not affected nor where all the parties interested have knowledge that the person pretending to be an officer is not an officer de jure. OFFICER "DE FACTO" AS DISTINGUISHED FROM USURPER. In order to make a person an officer de facto he should in some way have been put into the office and have secured such a holding thereof as to be considered in peaceable possession and actually exercising the functions of an officer; an intrusion by force is not sufficient.

This was an application to the Supreme Court for a writ of mandamus to remove the respondent from the office of superintendent of the Ophir Silver Mining Company. The petition of the relator set forth fully the facts upon which he relied. An alternative writ was issued, requiring the respondent to show cause why he should not be removed and surrender up the office of superintendent. On July 17, 1874, the return day of the writ, respondent appeared and filed an answer, alleging that the proceedings, claimed by the relator to constitute a removal of the respondent and an election of the relator, were void. The property of the Ophir Company, situated at Virginia City, being of great value,

State ex rel. Corey v. Curtis.

the controversy as to who was entitled to act as superintendent and have the management thereof became of great importance to the parties interested. The facts are stated in the opinion.

Hall McAllister, for Relator.

I. The by-laws of the Ophir Silver Mining Company were properly made by the stockholders. 1 Hittell's Gen. Laws of Cal., 935, 936, 959. They were fully ratified and adopted by the board of trustees. Union Bank of Maryland v. Ridgeley, 1 Harris & Gill, 325; Langsdale v. Bouton, 12 Ind. 467; Angell & Ames Corp., Sec. 238, 284, 325; Pixley v. West. P. R. R. Co., 33 Cal. 192. They were written in full on the first pages of the record book of the proceedings of the board of trustees. They were the only by-laws of the company, and had been substantially adopted both by stockholders and trustees.

II. The statute of California provides that "when any vacancy shall happen among the trustees by death, resignation or otherwise, it shall be filled for the remainder of the year in such manner as may be provided by the by-laws of the company." 1 Hittell, 936. The whole subject matter of filling a vacancy among the trustees is left completely to the by-laws. Under the power conferred by statute to fill vacancies among the trustees according to the by-laws, the company might by its by-laws have authorized the president alone to fill such vacancies. Instead of doing this, however, the by-laws provided that the president should have the casting vote at any meeting of the trustees at which a vacancy was to be filled. The giving of this casting vote conferred something new, something additional to what he before had as a trustee, and this something was a casting vote in case of a tie. It may seem peculiar that one person should have two votes upon the same question, but it is only in case of a

State ex rel. Corey v. Curtis.

particular exigency. Such a power ought to reside somewhere, to prevent a "dead lock." "A casting vote sometimes signifies the single vote of a person, who never votes but in the case of an equality; sometimes the double vote of a person, who first votes with the rest, and then, upon an equal ity, creates a majority by giving a second vote." 1 Chitty's Blackstone, note 73; 5 Jacob's Law Dictionary, Parliament, sub..7; 2 Dillon Municipal Corporations, Sec. 208; Cushing's Par. Law, Secs. 309, 317; Hittell's Gen. Laws, 1129, 1130; McCullough v. Annapolis and Elkridge R., 4 Gill, 58. Unless the trustees can act under the by-law, providing for the filling of a vacancy in the board of trustees, there is no way in which such vacancy can be filled. And if the trustees act, in filling such vacancy, under the power given by the by-laws, the power must be taken as it is given to wit, with right of the president to have his casting vote in case of a tie.

III. The filling a vacancy in the board of trustees is not a corporate act, it is an administrative or elective act. An election of trustees is the selection of those to whom are entrusted the corporate powers and by whom corporate acts can be performed. There are various acts in the administration of the affairs of a corporation, which are very essential to its proper administration and yet not corporate acts, such as the appointment of inspectors of corporate elections, (3 Serg. & Rawle, 29,) and the calling together of the trustees by the president, whenever he deems it necessary. But if the filling a vacancy were a corporate act it was performed in this case by a majority of a quorum of the board of trustees, by their adopting by-laws prescribing how such vacancy should be filled by the trustees, and by their giving a casting vote to the president at any meeting of the trustees for that purpose.

IV. While the statute asserts the general proposition that a decision of a majority of a quorum of the trustees shall