dissenting:
I am unable to concur in the conclusions reached by my learned associates in this proceeding. I think the writ should be denied.
Conceding that the act of 1901 is mandatory, and that the governor has no discretion to refuse any gifts, bequests, assignments, etc., metioned in the statute, nevertheless, I think it is clear from the language of the statute that such duty is only imposed where the grant, devise, bequest, donation, gift, or assignment is as to a thing of value. There is no allegation in the petition that the 145 bonds of the State of North Carolina tendered to the governor for the benefit of the State of Nevada are of any value whatever. The respondent has alleged in his answer, as a reason for his refusal, that the said bonds are of no value whatever; that they were fraudulently issued, and have been repudiated by the state issuing the same. These bonds, upon their face, would naturally arouse some suspicion as to whether they were of value. They were all more than ten years past due when offered. The face value of the bonds was $1,000 each, a total of $145,000, upon which unpaid inter*576est coupons were attached amounting to over $256,000. Upon most, if not all of these bonds, no interest has been paid for over forty years. They were all issued in pursuance of acts of the legislature of the State of North Carolina, passed during the years 1868 and 1869. In so far as the State of North Carolina had power to do, it had repudiated these bonds. The answer of the respondent in this case contains the following allegation: “That the said bonds referred to in the petition of relator, and so authorized and issued as aforesaid, were in true legal effect declared invalid and uncollectable by a constitutional amendment adopted by the people of the State of North Carolina in 1880, which said constitutional amendment is in words and figures following, to wit: ‘The state shall never assume or pay or authorize the collection of any debt or obligation express or implied, incurred in aid of insurrection or rebellion against the United States or any claim for the loss or emancipation of any slave; nor shall the general assembly assume or pay or authorize the collection of any tax to pay, either directly or. indirectly, express or implied, any debt or bond incurred or issued by the authority of the convention of the year 1868, nor any debt or bond incurred or issued by the legislature of the year 1868 either at its special session of the year 1868 or at its regular sessions of the years 1868-1869 and 1869-1870, except the bonds issued to fund the interest on the old debt of the state, unless the proposing to pay the same shall have first been submitted to the people and by them ratified by a vote of .a majority of all the qualified voters of the state at a regular election held for that purpose.’ ”
The bonds in question tendered to the State of Nevada are apparently in a very different situation than the bonds given to the State of South Dakota under the provisions of a similar act to that involved in .this action, and which were sued upon by the State of South Dakota in the case of South Dakota v. North Carolina, 192 U. S. 287, 24 Sup. Ct. 269, 48 L. Ed. 448. The bonds given to the State of South Dakota were never directly repudi*577a ted by the State of North Carolina, and were secured by stock of the North Carolina Railroad Company. The judgment in that case went no further than to say that in the event said bonds were not paid by the first Monday of January, 1905, that an order of sale be issued to the marshal of the supreme court directing him to sell at public auction all the interest of the State of North Carolina in and to the said shares of the capital stock of the North Carolina Railroad Company held as security for the payment of said bonds. Any further relief was left for future consideration upon application to the court.
It does not appear that the bonds in question in this proceeding are secured by any mortgage or other collateral security as in the North Dakota case. Even if we are to indulge in the presumption that these bonds were issued in pursuance of law, and were untainted by any fraudulent proceeding, nevertheless a grave question is presented as to the means of enforcing any judgment which might possibly be obtained in the Supreme Court of the United States.
During the progress of the argument in this case one of the counsel for the petitioner stated that he believed these bonds, in their present form, had some market value, and was of the opinion that it was about 25 cents Gn the dollar of the par value of the bonds. I do not think that this statement should be considered as establishing that the bonds have any value whatever in the face of a failure to make any allegation in the petition that they were of any value and an absolute denial that they were of value made by the answer. It is conceded that in the hands of individuals they are absolutely uncollectible. When the property of the state, the most that can be said is that the state might institute a suit for recovery upon these bonds against the State of North Carolina in the Supreme Court of the United States. In such action the State of North Carolina could, if such were the fact, show that the bonds were never legally issued or were fraudulently issued. If these questions should be resolved in favor of the bonds, there would *578then remain the question whether the provision of the constitution of the State of North Carolina was violative of the provisions of the federal constitution, and, if this question was also determined in favor of the State of Nevada as holder of the bonds, there would still be presented the very grave question of enforcing the judgment against the State of North Carolina, should that state not voluntarily make provisions for the payment. In this proceeding, we ought not, in my judgment, to indulge the presumption that the State of North Carolina, without valid and sufficient reason therefor, embodied in its organic law a repudiation of these bonds. For these reasons, I am of the opinion that this court is amply justified in holding that there is a failure upon the part of the petitioner to make any showing that the bonds in question are of any value. The statute of 1901, quoted in the prevailing opinion as before stated, is only intended to apply to some “property or thing of value.” It will hardly be contended, I think, that the legislature, in passing the act of 1901, contemplated that the governor should be required to accept bonds of the character involved in this proceeding.
This court, to refuse the writ in this case, would not have to go any further, in my judgment, than it went in the case of State v. Beck, 25 Nev. 113. In that case this court, by Bonnifield, C. J., said: “Whatever may have been the legislative object in passing the act, we presume it was a good one, but we cannot indulge such violent presumption as that the object was to compel a county to pay a claim which has been finally adjudicated by the courts to be fraudulent on the part of the claimant. ‘Mandamus should not be be granted to compel a technical compliance with the strict letter of the law, in disregard of its spirit.’ (Wiedwald v. Dodson, 95 Cal. 450, 30 Pac. 580; State v. Board Comrs. Phillips Co., 26 Kan. 419; High, Extra. Rem., 3d. ed., sec. 9.) The writ is denied.”
In the case of People v. Board of Assessors, 137 N. Y. 201, 33 N. E. 145, the court said: “The writ of man-*579damns is not always demandable as an absolute right, and whether it shall be granted or not frequently rests in the discretion of the court. (State ex rel. v. Comrs. Phillips Co., 26 Kan. 419; People v. Hatch, 33 Ill. 9, 134; People ex rel. Sherwood v. Board of Canvassers, 129 N. Y. 360, 29 N. E. 345, 14 L. R. A. 646.) The writ will be granted to prevent a failure of justice, but never to promote manifest injustice. It is a remedial process, and may be issued to remedy a wrong, not to promote one, to compel the discharge of a duty which ought to be performed, but not to compel the performance of an act which will work a public and private mischief, or to compel a compliance with the strict letter of the law in disregard of its spirit or in aid of a palpable fraud.” See, also, 26 Cyc. 143-155.
Without considering any of the other questions argued in this proceeding, I am of the opinion that the failure to allege in the petition, or otherwise establish, that the bonds offered were of any value is conclusive of this case. The burden was on the petitioner to allege, and, if denied, to establish upon the hearing, that the bonds were of some substantial value. The petition only alleged that certain bonds were tendered to the respondent as acting governor, for the benefit of the state, without any allegation whatever that they were of any value. Upon their face they appeared to be long past due, and as having never been acknowledged as being valid subsequent to their issue by the payment of interest thereon.
■ The refusal of the respondent to receive the bonds in question was based, among, other grounds, upon the ground that they were valueless. If the respondent was correct in his conclusions in this regard, he was, in my judgment, acting within the law in refusing to accept the bonds. It was incumbent upon the petitioner in this proceeding to allege and prove that the bonds tendered to the governor for the state were of some material value, and, there being a failure to make such an allegation, the petition did not state facts sufficient to entitle the petitioner to any relief. The mere assertion by coun*580sel for petitioner that in his judgment the bonds did possess some value ought not to be considered in the absence of an agreement or stipulation by the respondent or his counsel that the assertion of petitioner’s counsel was a fact to be considered in the case.
From the entire case, and particularly upon the ground of failure to allege or prove value in the bonds tendered, it is my judgment that the writ should be denied.