Opinion of the Court--Beatty, J.

correct, and that said land can be divided into two equally valuable tracts or parcels of land, without great prejudice to the owners thereof, and that none of the improvements, except outside fences, are of much value where they are), it is ordered, adjudged and decreed by the court that said land and premises in controversy, including the improve ments on said land, can be divided into two equally valu able tracts or parcels of land and improvements without great prejudice to the owners thereof, the parties to this action, who each own one undivided half thereof, and that such partition ought to be, and shall be, made as follows; A direct line shall be run through said land from east to west and from west to east, in such manner that one-half of said land will lie and be north of said direct line, and the other half of said land south of said direct line, and said improvement on said land in controversy shall be divided and partitioned between said parcels of land and the owners thereof, and disposed of as follows: All fences standing on the exterior limits or boundary-lines of said land shall remain as they are; the yellow-colored dwelling-house, the milk-house or cellar, and the smaller of the two barns shall belong to and be removed by the party who shall in this partition get and own the north half or parcel of said land; the other dwelling-house, the out-houses, the largest of the two barns and the two corrals, which are on the south half or parcel of said land adjoining said barn on the north, shall go with said half or parcel of said land, and belong to the party who, in this partition, shall get and own said south half or parcel of said land in controversy," etc.

The appellant objects to this decree on the grounds: First, that the court exceeded its jurisdiction in making the partition itself instead of leaving it to be done by the referees; and, second, that even if the court had possessed the authority to make the partition, it proceeded in this instance upon an erroneous principle. Both points are well taken:

First. The court can order a partition to be made, but it cannot itself make the partition except in the indirect mode of confirming the report of the referees appointed for the

Opinion of the Court--Beatty, J.

purpose of carrying out the order of partition. In this case it was settled by the pleadings that the land, including the improvements, was common property, belonging an undivided half to each party, and there seems to have been nothing for the court to decide preliminary to the interlocutory decree except the question whether the land should be partitioned between the parties or sold, and the proceeds divided. Having decided in favor of a partition, the court should have appointed referees, and directed them to divide and mark out the land, including the improvements, into two parcels of equal value, instead of making the division itself into two parcels of equal area.

Second. We are not aware of any precedent for requiring a severance and removal of improvements which are a part of the realty from one parcel of the land to another in order to equalize their values, and we think such a course would be generally, if not always, injurious to the interests of the co-tenants. If, in carrying out an order of partition in a case like this, the land cannot be divided into parcels of convenient shape and situation without throwing all, or the more valuable portion of the improvements into one tract, then, unless the value of the land in the other tract is greater than in the one on which the improvements are situated, it should be increased in area until it is equal, quantity and quality considered, to the remaining tract, with the improvements included. The statute (C. L. secs. 1338-9-40-41), and the authorities cited in the briefs of counsel, sustain these views, and upon the grounds stated, and for the additional reason that the decrees order a partition of certain personal property not mentioned in the pleadings, the interlocutory decree must be reversed, and as the final decree merely carries the interlocutory decree into effect, that must be reversed also.

It is ordered that the final decree be reversed, and the interlocutory decree also, in so far as it attempts to make a partition; and the cause is remanded for further proceedings in accordance with the views herein expressed.

Points decided.

[No. 805.]

DAYTON GOLD AND SILVER MINING COMPANY, PETITIONER, v. W. M. SEAWELL, DISTRICT JUDGE, RESPONDENT.

MINING AND MILLING ACT, CONSTITUTIONAL.-The act entitled, "An act to encourage the mining, milling, smelting, or other rednction of ores in the State of Nevada," approved March 1, 1875 (Stat. 1875, 111), is constitutional.

EMINENT DOMAIN-PUBLIC USE.-When the legislative power of appropriation of the private property of a citizen is attempted to be exercised, the true test of its validity is, whether or not the use for which the property is to be appropriated is a "public use," within the meaning of these words as used in section 8, article 1, of the state constitution.

IDEM-DECISION OF LEGISLATURE NOT FINAL.-The declaration by the legis

lature that the purposes named in the act are "to be for the public use, and the right of eminent domain may be exercised therefor," is not conclusive upon the courts. IDEM-DOUBTFUL CONSTRUCTION.-Although the action of the legislature is not final, its decision upon this point is to be treated by the courts with the consideration which is due to a co-ordinate department of the state government, and in case of a reasonable doubt as to the meaning of the words the construction given to them by the legislature ought to prevail. WISDOM, POLICY, AND EXPEDIENCY OF THE LAW.-The legislative and executive departments of the state government are the sole judges of the wisdom, policy, justice or expediency of a law.

IDEM-POWER OF COURTS.-It is only in cases where the federal or state constitution limits the legislative power, and controls the will of the legislature by a paramount law, that courts are authorized to interfere and declare any legislative enactment void. EMINENT DOMAIN-MEANING OF THE WORDS "PUBLIC USE."-In construing the meaning of the words "public use,' as contained in the constitution of this state: Ileld, that any appropriation of private property under the right of eminent domain, for any purpose of great public benefit, interest or advantage to the community, is a taking for a public use. IDEM NECESSITY MUST EXIST.-The object for which private property is to be taken must not only be of great public benefit and for the paramount interests of the community, but the necessity must exist for the exerciso of the right of eminent domain.

IDEM WHEN THE POWER CAN BE EXERCISED.-The exercise of the power of eminent domain, even for uses confessedly for the public benefit, can only be resorted to when the benefit which is to result to the public is of paramount importance compared with the individual loss or inconvenience, and then only after an ample and certain provision has been made for a just, full and adequate compensation to the citizen whose property is to be taken.

Argument for Petitioner.

ORIGINAL application before the Supreme Court for a writ of peremptory mandamus.

The facts are stated in the opinion.

Whitman & Wood and C. J. Hillyer, for Petitioner.

I. The proceedings provided by the statute in question are identical with those held to be constitutional for the exercise of eminent domain and taxation in case of railroads in this state. (Gibson v. Mason, 5 Nev. 282; Eliiot v. V & T. R. R. Co., Id. 358; V. & T. R. R. Co. v. Henry, 8 Id. 165.) The method then being correct, the only question is as to the right. It is generally conceded that private property may not be taken by legislative action for private purposes; in fact, we have found but one authority to the contrary (Harvey v. Thomas, 10 Watts. 64); yet there is no reason for the rule, and we contend that the logical conclusion should be otherwise. And first, the constitution of the United States, so often called to the aid of the rule, has nothing to do with it. The fifth amendment to the federal constitution affects only federal legislation, and does not in any manner control that of the several states. (Barron v. City of Baltimore, 7 Pet. 273; Fox v. State of Ohio, 5 How. 449; Withers v. Buckley, 20 Id. 90.) So then we have only to consider the effect of the state constitution upon the proposition.

It is universally conceded that the constitution of a state, touching the legislative branch, is a limitation, not a grant of power; and that the legislative power is unlimited, save as so circumscribed. (Gibson v. Mason, 5 Nev. 283; Leavenworth County v. Miller, 7 Kan. 479.) If this be so, and there is no doubt upon that point, what shall prevent a legislature from taking private property for private use? Is it because it would be a violation of a natural right? Many legislative powers are such, and it is well held that it will not do to make this claim as against a written constitution. (Butler v. Palmer, 1 Hill, 324; Bennett v. Boggs, 1 Baldwin, 74; Cochran v. Van Surlay, 20 Wend. 381; Calder v. Bull, 3 Dallas, 386; Gibson v. Mason, 5 Nev. 295.)

Argument for Petitioner.

No implied prohibition can properly be drawn from the language of the constitution. It is admitted on all hands, that the gist of such language is in the prohibition to take private property for public use without compensation. So the only prohibition which can properly be inferred against taking private property for private use, if any may be, is that such property shall not be taken for such use without compensation. This we claim, against the great weight of authority to the contrary, is the only logical conclusion. So if the statute in question does take private property for private use, still, as it provides compensation, it is not unconstitutional. But it is not necessary for the purposes of this case to assume this extreme ground, though it be clearly correct. The statute declares in terms that the use for which the property is sought to be taken by petitioner is a public use, being that of mining. This should be conclusive (Potter's Dwarris on Statutes, 384, sec. 1); or if not absolutely conclusive, still of such great weight, that unless the use be clearly private, courts will not interfere with the legislative decision. (United States v. Harris, 1 Sumner, 42; Beekman v. Sar. & Sch. R. R. Co., 3 Paige, 45; Varick v. Smilh, 5 Id. 137; Matler of Townsend, 39 N. Y. 174; Bankhead v. Brown, 25 Iowa, 546; Olmstead v. Camp, 33 Conn. 532; Todd v. Austin, 34 Id. 78; Talbot v. Hudson, 16 Gray, 417; Waterworks Co. v. Burkhart et al., 41 Ind. 379; Kent's Com., vol. 2, 12th ed., 340, note.)

II. Within the meaning of the law of eminent domain, land is taken for the public use, whenever its taking is for the general public advantage. In addition to the authorities cited in the opinion, counsel refer to the following: (Cooley on Taxation, 77; Ash v. Cummings, 50 N. H, 591; Jordan v. Woodward, 40 Maine, 317; Burgess v. Clark, 13 Ired. 109; Crenshaw v. Slate River Co., 6 Rand. 245; Scudder v. Trustees Del. Falls Co., 1 Sant. N. J. 694; Trabue v. Macklin, 4 B. Monroe, 497; Matter Central Park, 63 Barb. 282; Brooklyn Park Commissioners v. Armstrong, 45 N. Y. 234; County Court v. Greenwood, 58 Mo. 175; Hildreth v. Lowell, 11 Gray, 345; Lumbard v. Stearns, 4 Cush. 60; Burden v. Stein, 27 Ala. 104; Reddall v. Bryan, 14 Md. 444;