State ex rel. Ford v. Hoover ( 1869 )

By the Court,

Lewis, C. J.:

■ The first section of an Act of the Legislature, entitled “ An Act to provide for Constructing and Maintaining Toll Roads and Bridges,” (Stats. 1865, 254) declares that “ any person or persons desiring to construct and maintain a toll road within any one or more of the counties of this State, shall make, sign, and acknowledge, before some officer entitled to take acknowledgments of deeds, a certificate, specifying: First, the name by which the road shall be known; and, second, the names of the places which shall constitute the termini of said road. Such certificate shall be accompanied with a plat of the route of the proposed road, and shall be recorded in the office of the County Recorder of the county or counties within- or through which said road is proposed to be located; and the record of such certificate and plat shall give constructive notice to all persons of the matters therein contained. The work of constructing such road shall be commenced within thirty days from the time of making the certificate above mentioned, and shall be continued with all reasonable dispatch until completed.” In accordance with this law, Ford had a certificate and plat recorded in the proper county, and proceeded with the construction of his road. But Hoover, who afterwards claimed the right to build a road upon the same route, contends that the County Recorders of this State have no authority to take acknowledgments ; and as the acknowledgment of the plaintiff’s certificate was taken by the County Recorder of Washoe County, it was not legally acknowledged, therefore that the requirements of the law in this respect were not complied with.

Whether County Recorders have such authority or not is the only question now to be determined. Section six hundred and thirty-six of the Statutes of 1861, provides among other things that Justices of the Peace and Recorders within their respective counties shall have power to take acknowledgments. But as this section is found under the title “ Miscellaneous provisions respecting Courts and Judicial officers,” it is argued that the Recorders referred to in this section, are the judicial officers known by that name. The objection to this position however is, that there was no Judicial Recorder known to the laws of the Territory at the time this authority to take acknowledgments was given, but County Recorders were, and their duties and responsibilities were fully defined. It may be inferred from this that the latter officers were referred to, as it cannot be supposed the Legislature conferred authority and power upon officers entirely unknown in the Territory, and nowhere recognized by its laws. If this statute is to have force and vitality it must be held that the Recorders referred to are the county officers known as such. A further reason in favor of the conclusion that these latter officers were referred to, and the authority to take acknowledgments was given to them, is the fixing by the Territorial Legislature of their fees for taking acknowledgments. (Stats. 1861, 247.)

Section sixty-three of the Statutes of 1864-5, page 118, we do not think in anywise affect this question; undoubtedly, the Recorders there referred to are Judicial Recorders; but to confer the power of taking acknowledgments on these latter officers, cannot nor does not seem to have been the purpose to deny that right to the County Recorders. This section is not an amendment of, nor does it supercede, section six hundred and thirty-six of the Statutes of 1861. Eor these reasons we conclude that the authority to take acknowledgments was by the law referred to, given to the County Recorders of the Territory, and as that law is still in force, it follows that the acknowledgment to the plaintiff’s certificate was ■properly taken.

Judgment below reversed,, and cause remanded.