Opinion of Beatty, C. J., on rehearing

as a juror, it would have been a much stronger point for appellant. When, therefore, the appellant only complained of being compelled to challenge, we assumed that the juror had not served in the case. If he had served, it is not likely the appellant would have failed to complain of it.

error.

Only two results could reasonably have followed the rul ing of the court on the challenge for cause: the one, that Gillig served as a juror; the other, that he was peremptrily challenged by appellant. If he served, it was clearly If the compelling appellant to challenge peremptorily was error, then certainly the case should be reversed, because error injurious to appellant was the necessary result of the ruling, and it would be unnecessary to determine whether this injury resulted from the juror serving or from the challenge.

But as, in our opinion, one of these results would have been error and the other not, it becomes necessary for us to determine, if we can, which result did follow the ruling; or, if we cannot determine that, then to settle what [*171] the rule should be in a case thus *left uncertain. As wo before said, the appellant must make out his case, and if he only established the fact that something was done which might or might not have produced a result injurious to himself, he has failed.

So, too, all reasonable presumptions are to be indulged in favor of the regularity of proceedings in the court below. This last rule has not much force in this case, because it is conceded the judge below did err in his rulings; but still, as the chances were even as to whether that error of judgment was followed by action injurious to appellant, or that which was perfectly harmless, even in such case the rule is perhaps not altogether inapplicable.

As there was an assignment of error on the ground that appellant was compelled to exhaust his peremptory challenges ou Gillig, and none on the ground that Gillig served as a juror, certainly the presumption is that he was challenged. Whether this exhausted his peremptory challenges, or whether he still had one, two or three at his disposal, did not appear of record. The question then arose, whether

Points decided.

this was sufficient to reverse the case.

This question was

one of very great doubt with the writer of this opinion. Upon an examination of authorities, we find a most decided preponderance in favor of the views we took in the case. The Virginia cases seem to hold that the simple fact of compelling a party to challenge a juror peremptorily when he should have been set aside for cause, would be good ground for granting a new trial.

These decisions were in criminal cases. Possibly, the rule might be different in that State in civil cases. There is also a dictum in 3 Gil. 368, to the same effect. This was also in a criminal case. On the other side, we find the several cases referred to in the original opinion. As the record fails to affirmatively show that appellant did exhaust his challenges, we think the original opinion must stand as the law of the case. In this case, probably the appellant, ou a more full and complete statement, would have been entitled to a new trial.

We always regret being compelled to decide a case on a mere technicality not affecting the merits, but we cannot go outside of the record.

A rehearing is denied.

JOHNSON, J., did not participate in this decision.

STATE OF NEVADA, APPELLANT, v. ARATUS H. HALL, RESPONDENT.

[3 NEVADA, 172.]

1 VERDICT OF ACQUITTAL-EFFECT OF.-A verdict of acquittal on a good indictment puts an end to all further prosecution for the offense charged in that indictment.

APPEAL from the District Court of the Second Judicial District, Hon. S. H. WRIGHT, presiding.

R. M. Clarke, Attorney-General, for Appellant.

Geo. A. Nourse and A. C. Ellis, for Respondent.

(1) 3 Nev. 259.

Points decided.

By the Court, LEWIS, J.:

At the last December term of the district court for the county of Ormsby, the defendant was tried upon an indictment charging him with the crime of grand larceny, and acquitted by the jury. From this verdict, and the judg ment rendered thereon discharging the prisoner, the State takes an appeal to this court.

As the indictment is clearly sufficient, and admitted to be so by the attorney-general, it cannot be seriously claimed that any court has the power to set aside a verdict or reverse a judgment of acquittal, and order the defendant to be retried. A verdict of acquittal upon a good indictment legally puts an end to all further prosecution for the same offense. No error, therefore, however great, will justify a court in setting it aside.

Appeal dismissed.

JOHNSON, J., was counsel in the court below, and did not sit in this case.

STATE OF NEVADA, APPELLANT, v. DANIEL E. EASTABROOK, RESPONDENT.

[3 NEVADA, 173.]

1 TAXES REMOVAL OF PROPERTY BEFORE ASSESSMENT.-Where a property is in this State at the time a levy is made thereon for taxes, the owner thereof becomes liable for the tax, although he may have removed the property before the value thereof is assessed.

2 IDEM-UNIFORM RATE OF TAXATION.-The constitutional provision, which requires "a uniform and equal rate of assessment and taxation," requires that all ad valorem taxes shall be at a uniform rate or percentage. One species of property cannot be taxed at a higher rate than another. 3 IDEM-PROCEEDS OF MINES.-The products of mines being subjected by constitutional provision to taxation, in lieu of the body of the mine, the entire aunual product must be subject to taxation at the same rate or percentage as other property.

IDEM-SECTIONS 1, 99, AND 117 REVENUE LAW CONSTRUED.-Section 1: Held, constitutional. Section 99: Held, that the opening and closing clauses are unconstitutional. Section 117: Held, unconstitutional. IDEM-MANNER OF ASSESSING PROPERTY.-The legislature may direct the manner of assessing property, so as to obtain a fair valuation.

(1) 2 Nev. 86; 4 Nev. 178. (2) 2 Nev. 86; 4 Nev. 319. (3) 4 Nev. 178, 319.

Argument for Respondent.

1 STATUTE GOOD IN Ppart, and Bad in PART.-If a law be passed by the legislature, constitutional in part but unconstitutional as to some of its provisions, that which is constitutional will be sustained, unless the whole scope and object of the law is defeated by rejecting the objectional featureɛ. In this case, rejecting that part of the act which is unconstitutional, there still remains a complete revenue law. IDEM-UNCONSTITUTIONAL PART SHOULD BE DISREGARDED.—The tax collector and other revenue officers should have disregarded the unconstitutional portions of this act, and proceeded to collect the tax equally from all property under those provisions which are constitutional. Any taxpayer, by a proper proceeding in court, could have compelled such a proceeding. NON-PAYMENT OF TAXES-NEGLECT OF OFFICER.-*One taxpayer can- [*174] not be allowed to escape payment of his taxes because the col

lector has improperly failed to collect from another from whom taxes are due.

APPEAL from the District Court of the Second Judicial District, Hon. S. H. WRIGHT presiding.

The facts are stated in the opinion.

R. M. Clarke, Attorney-General, and S. C. Denson, DistrictAllorney for Ormsby County, for Appellants:

That proceeds of mines are not required to be taxed at the same ad valorem rate as other property. (Sec. 1, art. 10, of Constitution; secs. 1, 5, 99, 100 to 125 of rev. act.) When a statute assumes to state the effect of a certain provision, we must presume that all the effects intended are stated. (Bird v. Dennison, 7 Cal. 307; Lee v. Evans, 8 Cal. 435; People v. Whitman, 10 Cal. 45; Perkins v. Thornburgh, 10 Cal. 191.) A saving clause in a statute must be rejected when in conflict with the body of the act. (Kent's Com. 462-3, and note; Savings Inst. v. Makin, 23 Me. 360; 15 Pet. 445.) As to construction of statutes (Campbell v. Union Bank, 6 How. Miss. 625.) Courts should not declare a law unconstitutional for inequality, unless such inequality leads to gross injustice. (People v. Coleman, 4 Cal. 55; Mayor, etc., v. Chollar Potosi Co., 2 Nev. 87; People v. Naglee, 1 Cal. 252.)

P. H. Clayton, for Respondent:

The revenue law is unconstitutional and void, because the

(1) 8 Nev. 323.

Opinion of the Court-Beatty, C. J.

proceeds of mines are only taxed to the extent of one per cent. for both state and county purposes, whilst the other property is taxed at one and a quarter for State, and one and a half for county purposes.

[*175] *By the Court, BEATTY, C. J.:

This was an action brought in the name of the State against the defendant for taxes alleged to be due the State and county of Ormsby for the year 1866. The property upon which the tax was levied consisted of certain choses in action or debts due to defendant.

The defense is two-fold: First, that defendant removed from the State of Nevada on the sixth day of April, 1866; that the chose in action followed the person of de[*176] fendant, and therefore was not *taxable in this State

after that date; that the assessment of the property was made after the sixth of April, and was therefore void, and conferred no right of recovery on the plaintiff.

The second ground assumed in defense was, that the ninetyninth section of the revenue act of 1864-5, as amended in 1866, discriminates in favor of the products of the mines, levying a smaller percentage of taxes on them than on other property; that, for this reason, the tax on other property was in contravention of that article of the constitution which requires all taxation to be equal and uniform.

We will examine these points in the order in which we have stated them. The law levying the taxes for the year 1866, was approved February 24th, of that year. The first sentence of the first section of that act is in these words: "An annual ad valorem tax of ninety-five cents upon each one hundred dollars' value of taxable property is hereby levied, and directed to be collected and paid for State purposes, upon the assessed value of all taxable property in this State, not by this act exempt from taxation."

Another sentence reads as follows: "And upon the same property, the board of county commissioners, in each county, is hereby authorized and empowered to levy and direct to be collected and paid annually, an ad valorem tax for county purposes, a sum not exceeding one hundred and