concurring:
I concur in the judgment of Justice Talbot. I served in the legislature of Nevada in 1901 which enacted this measure, as a member of the assembly from Ormsby County. At the request of the then governor of Nevada, Governor R. Sadler, I introduced the bill in question “by request,” which the legislative records disclose, authorizing the state to accept and collect grants, devises, bequests, donations, and assignments. The bill passed both houses of the legislature unanimously, and was signed by the governor. This statute is the only one of *571its nature in our statute books which places this state in a position to officially accept gifts, grants, devises, bequests, donations, and assignments. Under this act, and by virtue of its terms, the officer designated in this act to officially receive, so that the title might become vested in the state, accepted, and the state received, from Clarence H. Mackay the gift of $200,000 and other monetary donations for our state university.
These North Carolina bonds, involved in the present case, are the second gift offered to the state since the passage of this act about ten years ago. At the time of the passage of this act before the legislature, no question of policy or expediency as to the acceptance of state bonds, such as are involved in the present case, was debated or considered, and knowing personally that if such a proposal of bonds was made as is involved in the present proposed gift that I would not. have voted as a legislator for this bill, unless amended so as to avoid such a necessity of enforcing the collection of bonds of the character offered in the present case, by reason of conditions existing at the time of their issuance and the alleged questionable original indebtedness they were issued to redeem, I would be pleased to see the incoming legislature amend the law to cover this situation so as to avoid this necessity.
As a judge of this tribunal, however, the law, as enacted by the legislature, until amended or repealed by the legislative department, must take its course, any personal sentiment to the contrary notwithstanding. Under the constitution of the United States, which is the supreme law of the land, and the constitution of Nevada, which we are obligated to obey under oath, we must order enforced any valid law irrespective of sentiment, and against any executive officer enjoined by law to a performance of a ministerial duty if he fails to execute the law. In this great country of ours, as it should be, under a constitution which was ordained to make all men equal under the law, no man is above the law whether he be the President of the United States or its lowliest citizen— *572millionaire or pauper; and while in the British and other governments that have not as yet advanced to a republic like ours the people are satisfied with the doctrine that prevails that the king or ruling head is above the law and can do no wrong, yet in this country every American citizen is legally equal before the law, and it is the plain duty of all officers to obey the law which they by oath promise to do, and a writ of mandate should issue to enforce such performance.
I especially desire to emphasize my approval and concurrence in the opinion of Justice Talbot to the effect that mandamus lies to enforce the nonperformance of a legal duty ministerially enjoined by law on the acting governor or any other executive officer, in view of the position taken so decidedly by the attorneys for the acting governor that mandamus will not lie against a chief executive of the state, and to check as far as lies in my power the constant and widespread attempt throughout the land to usurp the powers, which the framers of our constitution especially delegated and vested separately in the three coordinate branches of our government.
The present case typifies to a nicety the position I desire impressed, and the evil I desire checked, in the tendency of one department of our government to usurp the powers of the other, and which are expressly delegated by the framers of our government to the three coordinate branches, and discloses how courts and judges and executive officers, swayed consciously or unconsciously by sentiment, may usurp or encroach on the powers vested in other departments, and violate the spirit of our constitution, and which, if unchecked, will ultimately nullify the grandest scheme of government ever proposed by man.
The act in question was passed by the legislature, which has the sole power, subject to the veto power of the governor, to pass the measure. The act in plain terms states that the state shall accept state bonds, devises, bequests, and assignments. The question of *573whether or not the legislature intended to place the state in its present position of enforcing the collection of state bonds of the character given them was not considered or debated by the legislature; but the fact' remains that the act states- in plain, unambiguous, mandatory terms “that whenever’ any grant, devise, bequest, donation or gift or assignment of money, bonds or choses in action or of any property, real or personal, shall be made to this state, the governor is hereby directed to receive and accept the same, so that the right and title to the same shall pass to the state. * * * ”
While personally we might wish that the act reposed a discretion in the governor for the purpose of refusing to accept the bonds proffered in the present case, yet, as judges interpreting the law, we have no alternative legally than to declare the law as we find it. Personally, I believe the state and its business should be conducted on the same business plane as that of any private citizen, and in so far as the acceptance of gifts is concerned, the state ought to be in the same position to accept or decline a gift, when the state’s prestige or standing might be injured in so accepting, and where it is necessary to sue to enforce a voluntary gift. It should also be in a position to consider any strings attached to the proposed gift, from whom, and the character and nature of the gift; but these are matters to be remedied solely by the legislative department, and not within the province of the executive or judicial departments.
As to the discretion reposed in this court to refuse to issue the writ of mandate, because of the alleged want of value in the bonds, and on the principle that courts will not deal with frivolous or valueless things, we are legally precluded from so acting, because the bonds on their face show a value of over $401,000, and a market value of over $100,000, and the Supreme Court of the United States and other courts, even including the Supreme Courts of North Carolina and Nevada, have held that bonds of a sovereign state are presumed to be valid until otherwise shown, and the statute of limita*574tions does not run against the right of a sovereign state to sue another sovereign state on bonds regularly passed by the legislature of a sovereign state, even though a legislature might later try to repudiate them. This latter point was directly passed on in a case which went to the United States Supreme Court, where the bonds in question were issued by Lincoln County, Nevada, and attempted to be repudiated by Lincoln County because of the fraudulent or extravagant nature of their incurrence. These Lincoln County bonds at the time of their issuance in 1882 only amounted to $180,000, and in the year 1900 the interest had accumulated to over $420,000; that the bonded indebtedness of Lincoln County on these same bonds was in excess of $600,000; yet the Supreme Court of the United States set aside the attempted repudiation of Lincoln County, and held that the statute of limitations did not run against the holders of the bonds because of the failure of Lincoln County to keep paid the accrued interest thereon. These Lincoln County bonds, or the greater portion of them, were later bought by the railroad companies running through Lincoln County for their own protection, and later compromised at about 50 cents on the dollar with 4 per cent interest, but the fact remains that there was found to be no legal way whereby Lincoln County could repudiate their payment.
The law in question is conceded by all to be constitutional, and it is the legal duty of the executive officer, designated in the act, to perform the duty enjoined on him as ordained by the legislative department, and it is our judicial duty to declare the law, and order its enforcement. If an executive officer can set aside one valid law, he can set aside any. other valid law and place himself above the law.
To deny the writ we would have to usurp a power and right vested solely in the legislative department, and take a contrary view to the United States Supreme Court and the Supreme Courts of Nevada and North Carolina *575which have passed practically upon every point presented in this case adversely to the respondent.
Under the judgment and power vested in this court by the constitution, the writ must issue in pursuance to the law, but its execution will be temporarily stayed for a period of time to extend until the close of the legislature, which is about to convene, so that an opportunity may be had to consider whether the legislature is desirous of amending the law as above indicated to meet the objections interposed to the acceptance of the proposed bonds or to repeal the act.
'If the language remains unchanged, the writ, which will now issue, will become operative; in the interim, for the reasons above assigned, the execution of the writ will be temporarily suspended, and until the further order of this court.