Opinion of the Court-Leonard, J.

APPEAL from the District Court of the Second Judicial District, Washoe County.

The facts are stated in the opinion.

No brief for appellant.

John R. Kittrell and Thomas E. Haydon, for Respondent:

I. Property to be taxable must be abiding within the limits of a state or county; must be incorporated with the wealth of the state or county.

By the Court, LEONARD, J.:

Plaintiff is a resident of Hamilton county, state of Ohio, where he pays and has heretofore continually and uniformly paid taxes upon the property hereinafter mentioned. In July, 1882, he was, and for a long time prior thereto had been, the owner of a circus and menagerie. In the month mentioned he was traveling and exhibiting his said circus and menagerie, transporting the same on the cars of the Union Pacific and Central Pacific Railways, from Omaha, Nebraska, to the town of Reno, in this state, where he remained and exhibited one day. He also exhibited in other towns in the state, along the lines of railroads. He did not come to the state or bring his property here, to remain longer than was necessary in order that he might exhibit the same. After exhibiting in the state as before stated, he intended to take his circus and menagerie to the principal cities and towns in California, and in fact did so.

While said property was in Washoe county, the defendant, as assessor thereof, assessed said circus and menagerie for state and county purposes, in the sum of ten thousand dollars, and threatened to seize and sell said property, unless the tax of two hundred and seventy-five dollars should be forthwith paid thereon. To prevent such seizure and sale, plaintiff then and there paid said tax under protest, and thereafter brought this action to recover back the same.

Defendant demurred to the complaint on the ground that

Opinion of the Court—Leonard, J.

the same did not state a cause of action, and that the second judicial district court did not have jurisdiction of the cause of action. The demurrer was overruled, and defendant failing to answer in the time allowed therefor, judg ment by default was entered. This appeal is taken from the judgment.

Appellant has failed to file any points and authorities as required by the rules of this court. For this reason alone, we should be justified, under former decisions, in affirming the judgment appealed from; but from the character of the case we deem it advisable to pass upon the merits of the appeal.

The court below had jurisdiction of the cause of action. The case involves the legality of a tax. Const. art. VI, sec. 6. The complaint states a cause of action against defendant. The property was not assessable in this state. In the sense of the statute, for the purposes of taxation, it was not within the state. It was passing through the state at the time of the assessment. It was here temporarily in the ordinary course of business. When he came here, plaintiff intended to remain in the state but a few days-just long enough to fill the engagements advertised-and then to continue his journey to other places in a neighboring state. He intended to take away all the property he brought with him. He was actually "on the wing," passing from one state to another. As well might this property have been taxed, if for the purpose of rest or health, plaintiff had stopped a few days in Washoe county. As well might a resident of another state be taxed on his money and team, if he comes on a visit to the state, to remain a week. (Barnes v. Woodbury, 17 Nev. 383; Conley v. Chedic, 7 Nev. 341; State v. Engle, 34 N. J. Law, 427; Hoyt v. Com'rs. 23 N. Y. 240; Id. 245.)

The judgment is affirmed.

VOL. XVIII-10

Points decided.

[No. 1167.]

EX PARTE E. D. SWEENEY.

CONTEMPT-CONSTRUCTION OF STATUTES.-The statute relating to contempts and punishments must be strictly construed, and no interpretation should be given beyond its obvious meaning. (Stats. 1869, 267.)

IDEM-STATUTES APPLICABLE TO CASES OF CONTEMPT.-The provisions of section 449 of the criminal practice act (1 Comp. L. 2073) and of the "act in relation to fines" (2 Comp. L. 3288) apply to all cases of contempt, when criminal, as well as other misdemeanors.

CONTEMPT CRIMINAL PROCEEDING, WHEN.-A contempt for the disobedience of a decree and violation of an injunction is in the nature of a criminal offense, and the proceeding for its punishment is in the nature of a criminal proceeding. IDEM-FINE-IMPRISONMENT FOR NON-PAYMENT OF.-Held, that the fine imposed in such cases is punitive, inflicted for the public good; that imprisonment for the non-payment of the fine is but a mode, provided by statute, for the enforcement of the fine, incident to the power given to the court to impose the fine, and that it cannot be regarded in the light of punishment. APPLICATION for discharge of petitioner upon habeas cor

pus.

The facts are stated in the opinion.

Harris & Bartine, for Petitioner.

R. M. Clarke, against Petitioner.

At Chambers, HAWLEY, C. J.:

Petitioner, upon a regular hearing had, was adjudged guilty of contempt of court, for disobedience to the decree. and injunction in the case of Phillips v. Welch, 11 Nev. 187, in appropriating more water than he was entitled to by said decree. For this contempt he was fined five hundred dollars, and the commitment under which he is held declares that "if said fine be not paid forthwith," the petitioner is to be "imprisoned in the county jail of Ormsby county for the space of two hundred and fifty days; that is to say, at the rate of one day for each and every sum of two dollars of said fine; and that for each day's imprisonment under this order defendant have credit

* * *

Opinion of the Court-Hawley, C. J.

upon the said fine for the sum of two dollars; and that defendant, if he so desire, after having served out part of said period of imprisonment, may be discharged from custody and set at liberty upon his paying to the said sheriff any balance remaining due of said fine, after crediting thereon the imprisonment which defendant shall have undergone as aforesaid, at the rate of two dollars per day for such imprisonment, and not otherwise."

Petitioner claims that this order for his imprisonment is absolutely void, and hence that he is illegally restrained of his liberty.

The statute relating to contempts and punishments, like other statutes relating to proceedings criminal in their nature, is to be strictly construed, and no interpretation should be given beyond its obvious meaning. The section upon which petitioner relies reads as follows: "In cases of contempt the punishment shall be by fine and imprisonment; but no fine shall exceed the sum of five hundred dollars, and no imprisonment shall exceed the period of five days, except as provided in section four hundred and sixtynine." (Stat. 1869, 267, sec. 473; 1 Comp. Laws, 1534.) The exception referred to has no application to a case like this. This section is identical in its provisions with the statute of 1861. (Stat. 1861, 389, sec. 440.) At common law the power to punish for contempts was unlimited, dependent only upon the discretion of the court imposing

the sentence.

Under the statutes of this state, by the section above quoted, the power of courts is limited as to the extent of the punishment. No court or judge can impose a greater fine than five hundred dollars or imprisonment for more than five days (or both such fine and imprisonment), as a punishment, upon any person adjudged guilty of contempt.

In the proceeding against petitioner no imprisonment was imposed as a punishment for the contempt, and the question to be determined, is, whether the provisions of the criminal practice act, or the act in relation to fines, as to the method of enforcing fines in criminal cases, applies.

Opinion of the Court-Hawley, C. J.

The criminal practice act in relation to the enforcement of judgments, provides that: "A judgment that the defendant pay a fine, may also direct that he be imprisoned until the fine be satisfied, specifying the extent of the imprisonment, which shall not exceed one day for every two dollars of the fine, or in that proportion." (Stat. 1861, 483, sec. 448; 1 Comp. Laws, 2073.)

The act in relation to fines' provides, among other things, that the court in entering "a judgment, that the defendant in a criminal case pay a fine, * * * shall by such judgment direct that if the judgment or any part thereof is not paid, the defendant be imprisoned one day for each two dollars of the judgment not paid." (Stat. 1869, 96; 2 Comp. Laws, 3288.)

These provisions, in my opinion, apply to all criminal cases of every kind and character, not otherwise specifically provided for-to cases of contempt, when criminal, as well as to other misdemeanors. A contempt of the character of which petitioner was found guilty, is in the nature of a criminal offense, and the proceeding for its punishment is in the nature of a criminal proceeding. (Phillips v. Welch, supra; Whittem v. State, 36 Ind. 204; Cartwright's Case, 114 Mass. 239; Hill v. Crandall, 52 Ill. 73; Williamson's Case, 26 Penn. St. 19; B. & O. R. Co. v. City of Wheeling, 13 Grat. 57.) The fine imposed, in such a case, is punitive, inflicted as punishments in other criminal cases are inflicted for the public good, in order to secure obedience to lawful authority. The imprisonment is but a mode, which in this state is provided by statute, for the enforcement of the fine. It is incident to the power given to the court to impose the fiue, and it cannot be regarded in the light of punishment.

In Ex parte Bollig, the petitioner was convicted of a violation of a city ordinance, before a police magistrate; was fined twenty-three dollars, and ordered to be imprisoned. until the fine was paid. It was contended that the imprisonment was a punishment for the offense and that such punishment was prohibited by the constitution. The court, in