Humboldt County v. The County Commissioners of Churchill County. the revenues over such as might be required to pay such vested demands as might be existing against the county when the Act of the Legislature was adopted, there is no force in this objection. The affidavit upon which the alternative writ was issued avers, that of the revenue of said county of Churchill for the fiscal year ending December 31st, A.D. 1869, there was a sufficient sum paid into the treasury of Churchill County, over and above all sums otherwise specifically appropriated, to pay the claim and demand of Humboldt County. All revenues not so specifically appropriated being subject to the appropriation made by this Act, the averment was clearly all that could be required. It is in effect an averment that there was three thousand dollars in the treasury subject to the appropriation made by the Legislature. III. The commissioners have no discretion respecting the duties imposed by the law. They are unqualifiedly and unconditionally required to do a specific act, to appropriate three thousand dollars for a designated purpose. In such case, undoubtedly, the writ may and should command the performance of such duty as required by law. Where any discretion is to be exercised by an officer as to the manner in which an act may be done, or rather when the thing de sired to be done depends upon the judgment of the officer, in such case the writ will not control his discretion, but only command him to act, without in any way interfering with the manner of his action. When, however, as in this case, a specific act is absolutely required to be done, with no discretion given to the person or persons required to do it, the writ may command the doing of the very act itself. (24 N. Y. 121.) IV. Was a demand upon the commissioners of Churchill County to set apart the money necessary to be made before the writ could properly issue? Clearly not. The duty imposed upon them is clear and specific. When they failed to perform it as required, the relator became entitled to the writ. There are cases, If, for example, is of a character it is true, where a demand may be indispensable. the performance of the duty sought to be enforced that could not be expected to be performed until demanded, the writ should not isssue until demand made. Such are the cases re Leake v. Blasdel. ferred to from California. In a case of this kind, however, where the law unconditionally requires of public officers the doing of a specific act, it is held that no demand is necessary. (Commonwealth ex rel. Middleton v. The Commissioners of Alleghany County, 37 Penn. State R. 237.) V. Nor do we see how an ordinary action at law will afford the relator the full, speedy and adequate remedy to which it is entitled. This is the only plain, speedy and adequate remedy known to us whereby the Commissioners can be compelled to perform the duty imposed upon them, and in similar cases it has been held the proper remedy. VI. No Court has the right to annul or set aside a law, except upon constitutional grounds. (See Gibson v. The Board of County Commissioners of Ormsby County, 5 Nev. 283.) Hence, any misunderstanding between members of the Legislature respecting its adoption, or even fraud in procuring its passage, cannot be inquired into by the Courts. So far as the Courts are concerned, the statute must be taken as expressing the free will and wish of the Legislature, whatever may have been the means employed to secure its adoption, and irrespective of any agreements or understanding had between members. Such matters the Courts have no power of reaching. The peremptory writ must issue in accordance with the prayer of the relator. JOHNSON, J., did not participate in the foregoing decision. THE STATE OF NEVADA EX REL. CHARLES A. LEAKE v. HENRY G. BLASDEL. NINTH JUDICIAL DISTRICT CONSTITUTIONAL. The Act of March 12th, 1867, constituting Lincoln County the Ninth Judicial District (Stats. 1867, 129) is not in conflict with the constitutional clause (Art. VI, Sec. 5) which forbids the change or alteration of the boundaries of a judicial district during the incumbent Judge's term of office. CREATION OF LINCOLN COUNTY. Lincoln County was unconditionally created by the Act of 1866, (Stats. 1866, 131) and as completely segregated from Nye County by the operation of that Act as it could be by legislative action. Leake v. Blasdel. NEW COUNTY WITHOUT SEPARATE GOVERNMENT. There may be a county without a government of its own; as happens when a new county, created out of another, continues to be attached to and controlled by the government of such other until its own government may be organized. LINCOLN COUNTY FOR A TIME IN NO JUDICIAL DISTRICT. Lincoln County was created and made a part of the Fifth Judicial District by Act of February 26th, 1866, (Stats. 1866, 131). The next day, (Stats. 1866, 139) the Judicial Districts of the State were changed, and the Fifth District made to consist of Humboldt County, no provision whatever being made for Lincoln: Held, that Lincoln County was not included in any Judicial District after February 27th, 1866, until the taking effect of the Act of 1867, (Stats. 1867, 129) which made it the Ninth Judicial District. EXPRESSIO UNIUS EXCLUSIO ALTERIUS. The Act of February 27th, 1866, designating the Judicial Districts of the State, distinctly provided that the Fifth District should consist of Humboldt County, and omitted all mention of Lincoln County, which had previously been attached to the Fifth District: Held, that such a designation was equivalent to an express declaration that no other county than Humboldt was included in the Fifth District. This was an application for a mandamus, made to the Supreme Court April 2d, 1870. The petition, after setting forth the facts fully, and much as they are set forth in the opinion, proceeded to state that Governor Blasdel refused to issue a commission to the relator as Judge of the Ninth Judicial District, on the ground that the Act of March 12th, 1867, (Stats. 1867, 129) making Lincoln County the Ninth Judicial District, etc., in so far as it authorized the election of Judge Leake in 1868, was in conflict with Art. VI, Sec. 5 of the Constitution. The respondent demurred.. A. C. Ellis, for Relator. Robert M. Clarke, Attorney-General, for Respondent. It is admitted that the relator was, at the general election held on the third day of November, A. D. 1868, elected District Judge for the Ninth Judicial District composed of the County of Lincoln; but a commission is refused him because it is claimed the Act creating that district was unconstitutional, and therefore that the position to which he was elected had no legal existence. The constitutional clause in question reads thus: "The Legislature may, however, provide by law for an alteration in the boundaries or divisions of the Districts herein prescribed, and also for increasing Leake v. Blasdel. or diminishing the number of Judicial Districts and Judges therein ; but no such change shall take effect except in case of a vacancy or the expiration of the term of an incumbent of the office." The laws touching the question are: 1st. An Act entitled "An Act to create the County of Lincoln and provide for its Organization," approved February 26th, A. D. 1866; the first section of which enacts that "all that portion of the State of Nevada within the following boundaries shall be the County of Lincoln;" then follows a specific designation of the boundaries. The second section declares: "Whenever a petition shall be presented to the Governor signed by three hundred or more citizens of said county, who shall be at the time of signing such petition registered voters, certified to be such by the clerk of the County of Nye—and it shall be the duty of the county clerk of said County of Nye to make out such certificate-praying for the organization of county government, he shall appoint and commission three persons, legal voters of said county, as county commissioners for said county, who shall immediately on receipt of their commissions qualify by administering to each of them the constitutional oath of office. They shall then elect of their own body a chairman, and then appoint all other necessary county and township officers, who shall qualify and enter upon the discharge of their respective official duties within ten (10) days after their appointments are certified to them. “The county clerk so appointed may take the oath of office before the chairman of the board of commissioners, and the other officers before said clerk." The third section simply locates the county seat. Section four provides: "If the county government of said county be organized early enough for the same to be done, said county shall be entitled to, and shall elect in conjunction with Nye County one senator, and one member of the assembly for said county alone. Said county shall be attached to Nye County for all county government purposes until its own is fully organized, and shall be a portion of the Fifth Judicial District until otherwise provided by law." (Statutes of 1866, 131.) 2d. On the following day (February 27th) an Act was approved, changing the Judical Districts of the State, the new County of Leake v. Blasdel. Lincoln being entirely omitted, and thus not included in any of the new districts nor created a district by itself: and the Fifth District, to which it was attached by the law creating it, (and which consisted of the Counties of Nye and Churchill) by the subsequent law is made the Seventh District. The law redistricting the State was not to take effect until the expiration of the term of the Judges then in office, which would occur on the first day of January, A. D. 1867, and thus no constitutional objection is urged against it. (Statutes of 1866, 139.) 3d. An Act amending the Act creating the County of Lincoln, making it the Ninth District, authorizing the Governor to appoint a Judge thereof, and organizing a county government. (Statutes of 1867, 129.) It is also admitted that the relator was properly elected, if the County of Lincoln was in fact created by the Act of February 26th, A. D. 1866, and the commission should issue; but it is said it was not, because its creation was by the law itself made dependent upon a certain condition which never transpired. That is a petition by three hundred citizens of the county, asking the organization of a county government; consequently, that it remained a part of Nye County (from which it was intended to create it) and was so at the time of the general election in the fall of the year 1866, at which time a Judge was elected for the Seventh Judicial District, comprising the Counties of Nye and Churchill. Being thus a portion of the Seventh Judicial District, the law approved March 12th, A. D. 1867, constituting the County of Lincoln the Ninth Judicial District, is in conflict with the constitutional clause above referred to, because it changes the boundaries of the Seventh Judicial District during the Judge's term of office, who was elected in 1866. The error in this position lies in the proposition that the creation of the County of Lincoln was made dependent upon the petition of citizens. The county itself, as we understand the law, was unconditionally created by the Act, and as completely segregated from the County of Nye as it could be by legislative action. It will be observed that no condition whatever is attached to the first section, whereby the |