Opinion of the Court-Beatty, J.

having his deposition taken, even if such an order is proper in any case-a question we think it unnecessary to decide. It seems perfectly clear, however, that the order for his production in court is a matter of which the petitioner is not entitled to complain, and that the jurisdiction of the court to take his deposition did not depend upon the validity of that order. The two things are entirely distinct. A party to a civil action has a perfect right to take the deposition of his adversary whether he is in or out of jail. But when he is in jail the aid of a court, or judge, is necessary in order to obtain access to him there, or to secure his production in court. A judge is not bound to make an order for that purpose, and ought not to do so unless the ends of justice require it; and the evidence requisite for showing that the order is necessary is an affidavit setting out the testimony that is expected from the prisoner and its materiality.

But the law which provides for such an affidavit was never designed for the protection of the prisoner, but only to prevent improper and unnecessary interference with the custody of prisoners. The sheriff is responsible for their safe keeping, and the law very properly provides that he shall not be obliged to produce them in court, or admit strangers to see them in jail, unless an important purpose is to be subserved. But when he obeys an order to produce a prisoner in court, although it may have been improvidently granted, it is no concern of the prisoner that his jailer has been more compliant than he was obliged to be. He is actually in court, and, being there, may be sworn as a witness in the same manner as if he had attended in obedience to a subpœna. (Comp. Laws, sec. 1453.) His right to stay in jail is not so sacred as to invest him with any greater privilege than other persons who happen to be prosent. The order to produce him performs exactly the same function as a subpoena in the case of a witness who is at large, and certainly it would not be contended if a witness has come into court in obedience to a subpœna substantially defective, or improperly served, that he cannot be compelled to testify. It is equally clear that, in this case, the witness

Opinion of the Court--Beatty, J.

being before the court, was bound to answer any question that he would have been required to answer if the process for getting him there had been strictly pursued.

This being so, it was for the court to decide what questions he should answer, and even if it erred in its decision upon that matter, it was but an error, and not an excess of jurisdiction. If the witness refused to answer when the court decided he should answer, it was a contempt, and punishable as such. (Comp. L. sec. 1521, fourth clause.)

Even if we had the power to review the rulings of the district court as to the legality and pertinency of the questions which the petitioner refused to answer, our conclusion would be the same. All the questions appear to have been material and strictly relevant, and the petitioner was bound to answer them, unless he chose to put himself upon his privilege not to criminate or degrade himself. But that excuse he expressly disclaimed. His position was, that the law protected him in his assumed privilege of concealing the means by which his innocence was to be made apparent. We are not, however, aware of any such provision in the law. It is true, that in the ordinary course of criminal proceedings, the defendant is enabled to conceal the grounds of his defense until the prosecution has made a prima facie case before the jury; but this is merely an incident to the course of those proceedings, and not in any true sense a privilege. As a defendant in a criminal action he can stand upon the presumption of his innocence, and is not bound to offer any defense until a case has been proved against him; but as a party to a civil action his privilege is just the same whether he has been indicted or not: he can only refuse to answer when his answers would tend to criminate or degrade him, and he must himself invoke the privilege. (Comp. L., sec. 1455.) This is the plain rule of the statute, and there is no public policy superior to the rule. To conceal his defense till the day of trial is, no doubt, a valuable privilege to a criminal, for it will often deprive the state of all opportunity of exposing its falsity, but it is difficult to see how it is to benefit an innocent defendant, who relies upon the truth for his vindication, unless it is as

Opinion of the Court-Beatty, J.

sumed that the state will suborn false witnesses for the purpose of destroying him.

This disposes of the first two points of the petitioner. The remaining question is: Did the court exceed its jurisdiction in imposing the penalties? The striking out of the petitioner's answer to the complaint of the Meadew Valley company for refusal to testify, was authorized by the express language of the statute. (Comp. L., section 1456.) If the law is constitutional-and there is no suggestion to the contrary-the respondent, in striking it out, certainly did not exceed his jurisdiction. But whether he did or not is not to be decided in this proceeding. The striking out of the answer was an order made in the civil case of the Meadow Valley Mining Co. v. Maxwell, and not in the criminal proceeding for contempt. It may, therefore, be reviewed on appeal from the judgment in that case, and consequently cannot be reviewed on certiorari. In one particular, however, we think there was an excess of jurisdiction: The statute concerning contempts is a penal statute, and must be strictly construed in favor of those accused of violating its prohibitions. Upon that principle at least, if not upon more liberal principles of construction, the mere refusal of a witness to testify on the same trial of the same issue cannot be deemed more than one contempt, no matter how many questions he may refuse to answer. Otherwise, there would be no limit to the amount in which he might be fined. But it is the manifest purpose of the statute to limit the amount of the fine to be imposed for any one contempt of court to the sum of five hundred dollars-a purpose that would be completely frustrated if the court, by repeating or multiplying questions, could multiply contempts. The district judge erred in finding that each separate refusal to answer a question was a distinct contempt; and in imposing fines which, in the aggregate, exceeded five hundred dollars, he exceeded his jurisdiction. I think his order should be modified by remitting all of the fines in excess of five hundred dollars, and the petitioner should have a judgment for his costs.

Opinion of Hawley, C. J. and Earll, J., concurring.

HAWLEY, C. J., concurring:

I concur in the conclusions reached by Justice Beatty upon the first two points discussed. With reference to the other question I am of opinion that in refusing to answer the various questions propounded to him (all being addressed to the same point), the petitioner was guilty of but one contempt, and that the court had jurisdiction to impose but one sentence.

The orders of the court were made subsequent to the taking of the deposition, and are all included in one general order, as follows: "For the refusal by the defendant in not answering the first question propounded in the deposition commenced to be taken on the 9th day of October, A. D. 1875, before the court, and for the contempt in such refusal, it is ordered that the defendant A. W. Maxwell pay a fine of fifty dollars; and for the next refusal to answer and the contempt thereby committed, it is ordered that the defendant pay a fine of one hundred dollars; and for the third refusal and contempt thereby committed, he is ordered to pay a fine of two hundred dollars; and for the fourth refusal and contempt thereby committed, he is ordered to pay a fine of four hundred dollars; and for the fifth refusal and contempt thereby committed, it is ordered that defendant pay a fine of five hundred dollars; and for each subsequent refusal thereafter, and contempt thereby committed, it is ordered that the defendant pay a fine of five hundred dollars each."

Now if there was but one contempt, I think there could be but one valid sentence; and that when the court adjudged petitioner guilty of contempt and ordered him to pay a fine of fifty dollars it exhausted its jurisdiction, and had no further power in the premises. The subsequent orders were, in my judgment, entirely null and void.

I am of the opinion that the judgment should be modified. so as to conform to the views I have expressed.

EARLL, J., concurring:

I concur in the judgment as modified by Chief Justice Hawley.

Points decided.

[No. 739.]

STATE OF NEVADA, EX REL., JOHN PIPER, RELATOR, v. THOMAS GRACEY, ASSESSOR, AND A. J. McDONELL, AUDITOR OF STOREY COUNTY.

MANDAMUS-COLLECTION OF TAXES-PROCEEDS OF MINES.-The collection of taxes solely due to a county is a question of public concern as well as of private interest, the collection of such taxes involve public duties and public rights. IDEM-BENEFICIAL INTEREST OF RELATOR.-When the question is one of public rights, and the object of the writ of mandamus is to procure the enforcement of a public duty, the relator is not required to show that he has any legal or special interest in the result; he is interested, as a citizen, in having the laws executed and the right enforced.

IDEM.-A private citizen and a taxpayer has such a direct and special inter

est in the collection of county taxes as entitles him to move for and prosecute the writ of mandamus to enforce that duty upon the part of public officers.

MANDAMUS A CIVIL REMEDY. - The proceeding by mandamus is a civil remedy, having all the qualities and attributes of a civil action, and is applied solely for the protection of civil rights.

IDEM-PLEADINGS.-The alternative writ and the return thereto are usually regarded as constituting the pleadings in proceedings by mandamus, the writ standing in the place of the complaint, and the return taking the place of the plea or answer in an ordinary action at law.

IDEM. The rule as declared in Curtis v. McCullough (3 Nev. 202), that “it is the affidavit and not the writ, which under our practice is answered,” referred to in connection with the rule above stated.

IDEM-WHAT FACTS MUST BE SHOWN.-To justify the issuance of the writ of mandamus, to enforce the performance of an act by a public officer, the act must be one, the performance of which the law specially enjoins as a duty resulting from his office, and an actual omission upon the part of the officer to perform.

IDEM.-The relator must show, not only that the officer has failed to perform the required duty, but that the performance thereof is actually due from him at the time of the application.

IDEM. The court cannot anticipate that a public officer will not perform his duties within the time prescribed by the statute, and an actual default or omission of duty is just as essential a prerequisite to the issuance of the writ as is the want of an adequate remedy in the ordinary course of law.

COUNTY COMMISSIONERS HAVE NO POWER TO RELEASE PROPERTY FROM TAXATION.-County Commissioners have no power to discriminate as to the character of the property which should be subject to taxation. That is a question for the legislature, subject to the provisions of the constitution.