As the matter was submitted to us on the question of the validity of the law of 1891, under which said respondent is acting, we shall pass upon that question alone. Objection was made in the course of the argument as to the propriety of allowing the relator to prosecute this action in his own name, but we think he can maintain the action in this form under section 3724, Gen. St., he being individually responsible for all costs. The contention of the relator is that the act of the legislature of March 19, 1891, under which the respondent claims the right to act as one of the regents, is unconstitutional, because it is in conflict with section 7, art. 11, of the constitution. The act under consideration reads as follows: "The board of regents of the state university shall consist of three elective members, as now provided by law, and of the governor and attorney general, who shall be ex officio members of said board." Immediately after the approval of the above act by the governor, the respondent, who then was and still is, the duly elected, qualified, and acting attorney general of the state of Nevada, qualified as such member of the board of regents, since which time he has been meeting with and acting as a member of the board. The section of the constitution referred to reads as follows: "Sec. 7. The governor, secretary of state and superintendent of public instruction shall, for the first four years, and until their successors are elected and qualified, constitute a board of regents, to control and manage the affairs of the university and the funds of the same, under such regulations as may be provided by law. But the legislature shall, at its regular session next preceding the expiration of the term of office of said board of regents, provide for the election of a new board of regents and define their duties." On the 5th of March, 1869, a law was approved by the governor providing for the election of regents by the legislature in joint convention on the third Tuesday of the session, and they were so elected until 1887. On the 7th day of February, 1887, an act of the legislature was approved by the governor, wherein it was provided that the governor, secretary of state, and superintendent of public instruction should constitute the board of regents until the 1st of January, 1889, and until their successors were elected and qualified. The act then provided for the election of three qualified electors at the next general election, to be voted for the same as other state officers, and, when elected, should constitute the board of regents, and fixed their term of office. Under this act J. W. Haines is the hold-over regent, and at the general election held in November, 1892, Charles E. Mack, the relator, and H. L. Fish were elected as regents, and qualified, and entered upon the discharge of their duties, as required by law.

It is the duty of courts, whenever called upon to pass on the unconstitutionality of

an act of the legislature, to approach the question with great caution, and, before the act should be declared void, it should appear that there has been a clear and palpable violation of the constitution; for the presumption is that every statute, the object and provisions of which are among the acknowledged powers of legislation, is valid and constitutional, and such presumption is not to be overcome unless the contrary is clearly made to appear. Shaw, C. J., in the case of Wellington, Petitioner, 16 Pick. 95, in considering the question whether or not a certain act of the legislature was valid, said: "The delicacy and importance of the subject may render it not improper to repeat what has been so often suggested by courts of justice, that when called upon to pronounce the invalidity of an act of the legislature, passed with all the forms and solemnities requisite to give it the force of law, courts will approach the question with great caution, examine it in every possible aspect, and ponder upon it as long as deliberation and patient attention can throw any new light upon the subject, and never declare a statute void unless the nullity and invalidity of the act are placed, in their judgment, beyond reasonable doubt."

Applying these principles, laid down with so much care, and adhered to by the courts of last resort of other states, and not forgetting that the presumption is always in favor of the validity of the law, and it is only when manifest assumption of authority appears that the judicial power can or will refuse to execute it, for legislative acts are to be upheld unless there is a substantial departure from the organic law, yet in connection with the above principles there is another principle or rule that courts strictly adhere to, and that is to follow precedents, and not to disturb that which has been accepted as a correct interpretation of a constitutional provision for a great number of years, without it is made to appear that the decision on the question then under consideration was erroneous, and should not be followed. The rule of stare decisis means that when a construction has been once placed upon a constitutional provision by a judicial decision, it forms a precedent for the guidance of courts in all similar cases. This rule should be strictly followed, for by a strict adherence to it, it preserves the certainty, the stability, and symmetry of our jurisprudence. The supreme court of the United States, as a general rule, follows the decisions of the highest courts of the several states upon the construction of their constitutions and laws, unless they conflict with or impair the efficacy of some provision of the federal constitution or of a federal statute. Louisville, N. G. & T. Ry. Co. v. Mississippi, 133 U. S. 591, 10 Sup. Ct. 348. When a word or paragraph used in a constitution has been interpreted, and its meaning determined by deliberate judicial decision, and has been in operation

for 23 years, as is the fact in relation to the word "elected," used in our constitution, and the meaning of the word has been followed and acquiesced in by the courts and people of the state, we should not disturb such decision. In the case of State v. Irwin, 5 Nev. 121, Whitman, J., speaking for the court said: "When words are used in a constitution, unless so qualified by accompanying language as to alter their ordinary and usual meaning, they must be received in such meaning. The word 'elected,' in its ordinary signification, carries with it the idea of a vote, generally popular, sometimes more restricted, and cannot be held the synonym of any other mode of filling a position." That case was decided in 1869, and although the court held that the constitution provided that the county officers should be elected by the people, yet, the legislature having created the county of White Pine, an emergency existed, and that body had the power to name the county officers for the purpose of putting the new system in motion, and providing for the election of their successors at the next general election. Without such power was vested in the legislature, no new county could be organized, for officers must be appointed to make the necessary arrangements for holding the election within the boundaries of the newly created county. In the case of State v. Arrington, 18 Nev. 412, 4 Pac. 735, the question before the court was as to the power of the legislature to extend the terms of offices of the then incumbents of the county assessors' offices from two to four years. passing upon the question, the court adhered to the meaning of the word "elected" as defind by the court in State v. Irwin, but the court held that "there was no emergency or special occasion calling for extraordinary action on the part of the legislature," and that portion of the act extending the terms of the incumbents to four years was held to be unconstitutional.

In

The respondent admits that, "under the constitution, the office of regent must be filled by an election by the people, but contends that the act in question created two new offices of regent, which, as soon as created, were vacant, and proper to be filled provisionally by the legislative appointment, in order to set the new system of the state university government and discipline in operation." By his admission that the constitution requires that the regents shall be elected by the people, it seems to us that the respondent virtually admits that he is not entitled to discharge the duties of regent, because by such admission he takes himself without the rule as laid down in the case of State v. Irwin, and falls within the rule as announced in State v. Arrington. In this, by increasing the number of regents from three to five, the legislature was not inaugurating a new system of government for the university, but merely increasing the number of regents who were to administer the affairs

of an institution which had theretofore been controlled by three; and there is nothing contained in the act of 1891 that would indicate, or lead us to the conclusion, that there was any emergency existing at the date of the passage of the act, whereby it became necessary that the increased number should be inducted into office prior to their election by the people. The same rule does not ap ply in the case under consideration that should be invoked in cases where the legis lature had created new counties, new judicial districts, or new state institutions. The act of 1891 did not create a new system, it merely created two new officers to assist three others who had been elected by the people to conduct the affairs of an institution which had been established, and the system inaugu rated, years prior to 1891. When new counties or judicial districts are created, or a new state institution established, it becomes necessary that officers should be appointed to organize and put in motion the county government, the judge to preside in the district, and the officers to control the affairs of the institution under such laws as may be enacted for the government of the same. Under these conditions, an emergency exists, and the legislature possesses the power to make provisional appointments to put the new system in motion.

We conclude, therefore, that the respondent is not entitled to discharge the duties of regent of the state university, by reason of the fact that he has not been elected to that position in the manner provided for by the constitution or under the act of 1887, and the judgment of ouster must be entered. As to whether the persons who shall be elected governor and attorney general at the general election to be held in the month of November, 1894, will be entitled to act as regents of the state university, it is unneces sary for us to decide. All that we are called upon to decide is whether the respondent is legally entitled to discharge the duties of regent at this time, and we say he is not.

It follows that the court erred in sustaining the demurrer to the petition, for which the judgment of the district court is reversed, with instruction to said court to overrule the demurrer, and for further proceedings not inconsistent with this opinion.

BELKNAP, J., concurs.

BIGELOW, J., (concurring.) As we have concluded that the legislative appointment under which the respondent now exercises the office of regent is null and void by reason of conflict with the constitution, it is unnecessary to pass upon any other question. He admits, what is clearly the case, that eventually all the regents must be elected by the people; but he claims that the act of 1891, appointing him, merely increases the number of regents from three to five, which the legislature had the right to do;

that at the election in 1894, when the people elect a new attorney general, they will also elect, ex officio, a regent, which will comply with the requirements of the constitution; and that the present appointment for the balance of this term of office, which, it will be noticed, extended over the election of 1892, is simply a temporary one, for the purpose of putting the new system into operation, which, under the case of State v. Irwin, 5 Nev. 121, the legislature had power to make. Where, as in that case, a new county is organized, or as in State v. Swift, 11 Nev. 128, a municipal corporation is created, it is necessary that in some manner a set of officers should be provided prior to the holding of an election, for there can be no election without officers to hold it. Although without incumbents, the offices have been created, and this presents the ordinary situation of a vacant office. Notwithstanding the language of the constitution that an officer shall be elected by the people, which must be generally followed, it could hardly have been the intention that this should apply under any and all circumstances; for it takes time to call an election, and it would often block the wheels of government for an office to remain vacant until an election can be held, and the result ascertained, even if one can be held at all, without the office being first filled. State v. Snodgrass, 4 Nev. 524; People v. Fisher, 24 Wend. 219; People v. Snedeker, 14 N. Y. 52.

This court concluded that the case of State v. Irwin, supra, and State v. Swift, supra, presented some of the excepted instances, and the appointments there questioned were accordingly upheld. But as these exceptions are contrary to the language of the constitution, and only to be justified by the exigencies of the situation, this principle should not be extended further than to the cases that reason forces us to conclude the constitution makers did not intend to be brought within the general rule that the incumbent of the office must be elected. The exception should not be extended to the creation and filling of unnecessary vacancies, nor should the appointments so authorized be allowed to extend beyond the time when, in the regular course of elections, they can be filled by the people.

In the case of State v. Arrington, 18 Nev. 412, 4 Pac. 735, the legislature of 1883 had provided that the terms of the assessors, which were then but two years, should be extended to four years, that the first election for assessor under this law should take place in 1886, and that the terms of the assessors then in office should be extended over the next election, and up to January, 1887. It was sought to justify this legislative appointment upon the same ground urged here, that the legislature had the power to make it, for the purpose of putting the new system into operation. The court, however, said, speaking of the cases already

If

cited here: "We do not deny that the legislature may make provisional appointments, if necessary, in order to put a new system into operation. Offices that must be permanently filled by an election, in cases of emergency may be provided for temporarily by other means. The constitutional mandate does not apply to such exceptional cases. State v. Irwin shows that certain parties were named as county officers in the bill creating the county of White Pine, to hold until the next general election. Irwin was designated as sheriff. The court held that the statute did not violate that part of the constitution which requires county officers to be elected by the people, because the office was filled only temporarily by the legislature, until the next general election, and that the constitutional mandate did not apply to cases of emergency or special occasion. Such is the undoubted law, but it does not apply to the statute under consideration. In this case there was no emergency or special occasion calling for extraordinary action on the part of the legislature. The several incumbents of the office had been elected for two years, under a general law which required their successors to be elected by the people at the general ciection in 1884. Before the expiration of the term for which they were elected, there would be a general election, at which their successors could be elected in the manner and form provided by the constitution. it was desirable to change their terms of office from two to four years, still there was nothing to hinder the election of their successors at the general election in 1884." This language undoubtedly states the law, and is decisive of the case in hand. The doctrine of State v. Irwin does not apply here, because, first, there was no special occasion or emergency that justified or called for the legislative appointment of a new regent. There was a board of regents already in existence, presumably, at least, able and willing to discharge the duties devolving upon them. If it was proper, and the legislature had the power, to increase the number of regents, still there could have been no crying necessity for its being done before the next election. The affairs of the university could, in the mean time, be attended to by officers elected by the people, and whom they must have thought, when they elected them, fully capable of so doing. It is not the case of an office that must be filled before the public business can go on. Secondly. No such special occasion or emergency could possibly exist longer than to the next election, at which time the office could be regularly filled by the people. This must certainly be so, unless we admit that there is some peculiar connection between the office of attorney general and that of regent that makes it necessary that each should be filled by the same incumbent, which there is no reason to suppose is the

(25 Or. 51)

KLEINSORGE et ux. v. ROHSE. (Supreme Court of Oregon. Nov. 20, 1893.) EQUITY-REFORMATION OF CONTRACTS-PLEADING -EVIDENCE.

1. To entitle a party to have a written contract reformed the complaint must show that some relation of trust and confidence existed between the parties, or that there was fraud or misrepresentation, or that the means of knowl edge as to the terms and conditions were not equally accessible to both parties.

2. To justify reformation of a contract the evidence must clearly and satisfactorily show that there was a mutual mistake, or a mistake on the part of plaintiff accompanied by fraud on the part of defendant, or by such acts on his part as would clearly be inequitable between the parties.

Appeal from circuit court, Multnomah county; M. G. Munly, Judge.

Suit by Fred Kleinsorge and wife against Joseph Rohse to reform a lease. From a judgment for plaintiffs, defendant appeals. Modified.

The other facts fully appear in the following statement by MOORE, J.:

This is a suit to reform and enforce a written lease of real property. The facts show that the plaintiff F. Kleinsorge, on February 5, 1892, was the owner and in the possession of a tract of land in South Portland, Or., containing 4.03 acres, in or near the center of which was his dwelling house with a path from it to the macadam road on the east, and a pipe laid from a spring near the west end of said tract to the house, that supplied water for irrigating a garden and for domestic purposes. The plaintiff leased said tract to the defendant for a term of five years, to be used as a concert garden, and, after the latter had commenced to improve it by building a high board fence around that part lying in front of said dwelling, and to erect a pavilion thereon, he desired an extension of the term, and the plaintiffs thereupon executed and delivered to him the following lease: "This agreement, between Fred. Kleinsorge and Katharina

Joseph Rohse, of the second part, all of Fulton precinct of the city of Portland, Oregon, witnesseth that the said Fred. Kleinsorge and Katharina Kleinsorge, his wife, in consideration of the covenants of the said Joseph Rohse, (his executors or administrators,) doth hereby lease unto the said Joseph Rohse, his executors or administrators, from the fifth (5th) day of February, A. D. 1892, until the fifth day of February, A. D. 1902,-that is, for the term of ten (10) years, the following described premises, to wit: Four (4) acres, or less, of ground and fruit trees thereon, to be used as a pasture or as a concert garden, at the discretion of the said Joseph Rohse. The said Joseph Rohse agrees to make room for street purposes, if so directed by the council of the city of Portland, without claiming any damage therefor. The said Joseph Rohse also agrees to pay such an increase of the taxes on said property, which being above and over the amount now paid by Fred. Kleinsorge. After the expiration of the first five (5) years, Joseph Rohse agrees to pay all taxes. Said Joseph Rohse further agrees to pay such street improvement as may be deemed necessary on the present streets. The rent to be paid at monthly payments of twenty-five ($25.00) dollars per month for the first three (3) years, and thirty-five ($35.00) dollars for the remaining seven (7) years. This monthly rent must be paid on or before the twentieth (20th) of each month, or this lease shall be void. And said Joseph Rohse further agrees to return said premises at the expiration of said time in as good order. and condition as they are now in, reasonable wear and tear and unavoidable casualties excepted." This was dated February 5, 1892, signed by the parties, and duly witnessed and acknowledged. Mr. Kleinsorge, on May 2, 1892, went to the mines in eastern Washington, leaving his wife in possession of the dwelling house, for whose accommodation the defendant placed locked gates in the high board fence, furnished her with keys thereto. allowed her to use the path from the house across his concert garden to the macadam road, and permitted her to occupy the dwelling until February 5, 1893, when he placed other locks on the gates, and refused to furnish her with keys to them, whereupon this suit was commenced, to enjoin him from interfering with her possession and to reform the lease. The plaintiffs allege that it was understood and agreed that said dwelling and inclosed garden, 85 by 116 feet, surrounding the house, together with the right of way across the concert garden to the macadam road, and the right to use the water from the spring for irrigating said garden and for domestic purposes, should be reserved to them by the terms of said lease; but that the defendant caused the foregoing lease to be prepared, and represented to them that it was in accordance

with their agreement, and they, relying upon such representations, were thereby induced to execute it, and did not discover the defects and omissions until just before this suit was commenced; that said lease does not contain all the agreements of said contract, and that they believe the defendant fraudulently obtained their signatures to it, well knowing it to be defective. The de-. fendant denied the material allegations of the complaint, but, as the lease failed to describe any property, he admitted that there was a mutual mistake in this regard, and adopted the description of the property as given in the complaint, and prayed that the lease be reformed so as to contain a correct description of the leased premises; and the cause, being at issue, was tried by the court, and a decree reforming said lease as prayed for by the plaintiffs was rendered, from which decree the defendant appeals.

Ed. Mendenhall, Jas. F. Watson, and E. J. Mendenhall, for appellant. E. W. Bingham and Clarence Avery, for respondents.

MOORE, J., (after stating the facts.) Does the foregoing lease express the intention of the parties to the contract? is the question presented by this appeal. To entitle a party to have a written contract reformed by a court of equity the complaint must show that some relation of trust or confidence existed between the parties to it, or that there was fraud or misrepresentation, or that the means of knowledge as to the terms and conditions were not equally open and accessible to both parties. Archer v. Lumber Co., (Or.) 33 Pac. Rep. 526. The complaint herein is founded upon the alleged fraudulent representations of the defendant, but does not allege that any relation of trust or confidence existed between the parties. In Hawkins v. Hawkins. 50 Cal. 558, it was held that where the complaint did not allege that any relation of especial trust or confidence existed between the parties to the contract, or that the means of knowledge as to the terms and conditions of the writing were not equally open and accessible to both parties, a demurrer was properly sustained. Upon the question of misrepresentations by the defendant as to the contents of the lease, the plaintiffs do not testify that he or any other person told them that it, as prepared, contained all or any of the terms or conditions agreed upon, and there is not one particle of evidence in the record to support the allegation to that effect in the complaint. The answer, however, having admitted that there was a mutual mistake in the description of the premises, makes it proper to consider the evidence for the purpose of ascertaining the terms and conditions of the contract agreed upon by the parties. 20 Amer. & Eng. Enc. Law, 720, and cases cited. The evidence shows that the plaintiffs and defendant, as well as most of their witnesses, are Germans, and that the

plaintiffs are old, and do not well understand the English language; that Mr. Kleinsorge went with the defendant to the office of Messrs. Rickard & Ohloff, neither of whom he was acquainted with, where Mr. Rickard prepared but one copy of the first lease at Mr. Kleinsorge's dictation, and when executed it was delivered to Mr. Rohse. The date of its execution is uncertain, the plaintiff testifying that it was February 5, 1892, while Mr. Rickard, who is not positive, thinks it was some time during the previous month. On the day of its date plaintiff F. Kleinsorge executed and delivered to the defendant an instrument, written in the German language, which, being translated, reads as follows: "Fulton, Oregon, Feby. 8th, 1892. I, the undersigned, testify hereby that the first monthly payment of $25 between the 5th and 20th of June begins for the year 1892 between the 5th and 20th, 1892; also no payments between the months in this year. [Signed] F. Kleinsorge." The plaintiff F. Kleinsorge testified that upon consultation with his wife, after the first lease was executed, they concluded that the defendant would be compelled to expend large sums of money in preparing the grounds for a concert garden, and that he could not derive any benefit therefrom until this work was completed, and that to aid and encourage him in prosecuting the work this instrument was executed. The defendant testified that the plaintiff, after the lease was executed, offered to pay him $75 if he would permit Mrs. Kleinsorge to remain in the dwelling house and use the small garden for the term of one year, to which he agreed, and that the receipt was given in settlement thereof, and that in pursuance of this agreement he placed gates in the high board fence for her accommodation, and allowed her to occupy the house and garden for one year. The plaintiff further testified that when the defendant desired an extension of the terms of the lease he sent Mr. Ohloff, whose partner had prepared the first lease, to see him about it, and that he told Mr. Ohloff he would not lease the house and garden, and that Mr. Ohloff, who is a surveyor, told him he ought to have the premises surveyed, but because of his lack of means it was not done; that about two weeks after this request was made the defendant's wife notified plainti that Mr. Ohloff had come to prepare a new lease of the property, and that he told the de fendant and his wife that he would not lease the house and garden. The defendant admits that the plaintiff made this statement, but says he told the plaintiff at the time that he had no use for the property with them in possession of the house, and that this claim had been the cause of their previous trouble. Mr. Ohloff testified that he copied the description from the first lease, and that, finding it insufficient, he requested the plaintiff to procure his deed, that he might correctly describe the property, but that both parties