Reports of Cases Argued and Determined in the Supreme Court of the State of Nevada (Volume 27) (Paperback)

This historic book may have numerous typos and missing text. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1905. Excerpt: ... Fitzgerald, J., concurring. they were authorized to deny the petition. It is the uniform decision of this and other courts that a subordinate body can be directed to act, but not how to act in a matter regarding which it can exercise its discretion. This court cannot substitute its judgment in place of that of the board in its denial of the petition. (Hoole v. Kink-end, 16 Nev. 222; Hardin v. Guthrie, 26 Nev. 252, 66 Pac. 744; State v. Curler, 26 Nev..i')G, 67 Pac. 107."i, and cases there cited; State v. County Court, 33 W. Va. 589, 11 S. E. 72.) It is unnecessary to express an opinion regarding the meaning of the statute in cases when it is sought to open new roads. The motion to strike out is denied, the demurrer is sustained on the two grounds indicated, and, if relator desires, he may amend within thirty days. Belknap, C. J.: I concur. Fitzgerald, J., concurring: The controversy on the merits in this proceeding is the proper interpretation of the word "shall" in a statute. The statute provides that, when certain things (naming them) are done concerning a road or highway, then the board of county commissioners shall vacate such road or highway. Petitioner claims" that, since he had done all the things named and required in the statute, the board of county commissioners were compelled by the word "shall" in the statute to close the road or highway in accordance with his petition therefor. If such were the proper meaning of "shall" in the legislative intent, the word "petition" in the statute would not aptly express or describe the document that was to set the power of the board in motion. The word "demand" would be the proper word to express such meaning. After complying with the conditions stated in the statute, the applicant for the relief should dema...