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Show IMI'OUTANT ISIO.V. SUP11EMH C01I11T, IIUHO TKHRITORY, JAN. TKH.M, 1X71. Tub rEoi-i.K, JCi: IiL, J. W. Huston, Hus-ton, lifspomlr.ut, vs. A. Hkkd and John U. 11kni.lv, Appellants. Appeal from tlio Third Judicial District, Ada County. Mcrritt, Prickett . Foute, for Apol-lnnts Apol-lnnts Preston S' Huston, fur Kcspund-ont. Kcspund-ont. Tho question involved in this caso is, whether or not the relator, who is admitted ad-mitted to have boon appointed under tho 10th section of tho Organic Act of tho Territory, is tho public prosecutor in all matters of otlbnso against the Territory, Ter-ritory, as well as all Uioso arising nndor tho Constitution and laws of tho United States, which question is prosentcd by tho dunaurrers of the defendants to the relator's complaint and the stipulations of tho parties. Tho 10th section of tho Organic Act of ther Territory provides "That there shall bo appointed an attorney for said Territory, who shall continue in ollice four years, and until his successor shall bo appuintod and qualilied, unless sooner removed bv the President of tho United States, and who shall receive tho same fees and salary as tho attorney of the United States for tho present Territory of Washington." This is tho only provision of law relating rela-ting directly to this otlicer, and as there appears to bo no law of Congress prescribing pre-scribing his duties and in fact nono relating re-lating directly to tho duties of any of tho attorneys appoihted for tho respective respec-tive Territories of tho United States we are compelled to resort to other sources of inlormation to determino the question. Tho law districting tho United States and proscribing the duties of tho Judges was passed in 1789, and in that act it was provided "That thero shall be appointed ap-pointed in each district a meet person, learned in the law, to act as attorney for tho United States in such district, who shall be sworn or adirmed to the faithful execution of his office, whose duty it shall be to prosecute in such district dis-trict all delinquents for crimes and offenses of-fenses cognizable uuder tho authority of the United fctrtes, and all civil actions ac-tions in which the United States shall be concerned." From time to time, as new districts -were formed within tho States, similar provisions were made respecting the appointment of District Attorneys and prescribing their duties. The question, therefore, very naturally natur-ally arises: "Where does the United States District Attorney for a Territory get the authority to appear as attorney in any case where the United States is not a party in interest?" Ho certainly can claim no right except ex-cept that vested in him by law, and it would be a violent presumption to con-elude con-elude that, because ho is "an attorney for said Territory," therefore, he would bave greater power or authprity than is conferred by the general and subsequent acts, prescribing generally what duties District Attorneys shall pertorui, when the very act creating him such attorney is silent on thj subject, except by implication, im-plication, and that implication against him. The relator is the attornoy of the United Uni-ted fatates for the Territory, which we have a right to conclude by implication, from the fact that the act says that he "shall receive the same fees and salary as the attorney of the United States for the present Territory of Washington." The Organic Act of that Territoy is in the exact language of our own, "that there shall be appointed an attorney for said Territory," and the Organic Act, under which the relator claims, designates the attorney for Washington Territory as ".the attorney of the United Uni-ted States." The designation, "attorney for the Territory," has been used by Congress synonimously with "attorney of the United States for the Territory," and it must be presumed that Congress meant one and the same thing by the two forms of expression. It appears to have been the policy of the general government, far several years, in forming new Territories to assimilate as-similate them as nearly as possible to the States, at the same time reserving that supervisory control over them which is intended by that clause in the Constitution which provides that Congress Con-gress shall have power to makeall needful need-ful rules and regulations repecting the territory of the United States. Congress Con-gress has made what it deems to be, we presume, ail needful rules 'aml regulations regula-tions respecting this Territory, by tho appointment of certain officers, the passage pas-sage of certain laws, and the creation of a legislative assembly with power extending ex-tending to all rightful subjects of legislation legis-lation consistent with the Constitution of the United States and the provisions of the Organic Act The legislative assembly at its third session provided for three District Attorneys At-torneys for the three several district of the Territory, who were to be the public pub-lic prosecutors "within the:r respective districts in all matters of offence against the laws of the Territory. Tha legislative legisla-tive assembly at its fifth session repealed the act of the third and provided in lieu thereof that there should be elected a public prosecutor for each county in the Territory. This last act Congress, on the loth day of July, 1870, disapproved of and annulled. Congress, therefore, not only declared that a District At-tornev At-tornev should not be elected in each county, but disapproved of and annulled an-nulled that part of the act of the fifth session repealing the act of the third, which provided for three District Attorneys, and if the repeal by the legislature leg-islature of the act of the third session was disapproved of by Congress, as a necessary consequence the act of the third session was virtually approved of. Whether or not the disapproval hy Congress Con-gress of the repeal, by tho legislature at its fifth session, of the act of the third would have the effect to reinstate the act of the third session, we do not decide. The act of the third session was upon the statute beok for more than four years, and a simijir act had been upon up-on the statute book for two years prior to the one of third, and while Congress had disapproved of laws passed by the Legislature, and in some instances restricted re-stricted its power, this law had not met with a disapproval, while the very act, a part of -which repealed it, met with a disapproval at once. It will not be contended but that Congress Con-gress might provide that this officer should prosecute in all law cases where there should be a violation of the laws of the Territory, but havingfailed to do so.wdiile the duties of all other Territorial Territori-al officers have been perscribed with the utmost particularity and certainty, no other conclusion can be arrived at than that the relator would only be the attorney attor-ney when the courts of the Territory were exercising their jurisdiction as Circuit Cir-cuit and District Courts of the United States. t certainly could not be maintained that a violation of the laws passed by tire legislative assembly would be a violation vio-lation of the laws of the United States, and if such position would be untenable, how could the relator be acting "as the attorney ot the United States for the Territory" when prosecuting oflenders for a violation of Territorial laws? At the time of the establishment of a Territorial Government ia Florida, it was provided that "there shall be appointed, ap-pointed, in the said Territory, two persons per-sons learned in the law, to act as attorneys attor-neys for the United States as well as for the Territory."- There can be ho doubt about the scope of the duties devolving upon the two officers created by that act, because they were to act as attorneys attor-neys for the United States as well as for the Territory;" that is, they were to act for both their duties each to be dual-one dual-one of them for East and the other for "West Florida. Thi3 serves to illustrate that Congress has at all times, in providing a District Attorney for each of the Territories, intended in-tended to make a distinction between the prosecution of cases arising under the laws of the Territory and those arising aris-ing under the laws of Congress, and in such appointments to confer the two powers directly and distinctly wheD it was intended that both should he exer- cised. In tho caso of Florida, tho distinction dis-tinction was clearly indicated by proscribing pro-scribing two duties for each of tho attorneys at-torneys of that Territory to perform; and if there bo two duties for public prosecute teporform in tho Territories of tho I'nited ritatos, liow could a prosecutor pros-ecutor perform tho two with no authority author-ity except to perform tho ono. This view uf tho caso, as to tho two classes of dir.ies to bo performed in the proseoution of persons lor a violation of the laws of tho United Statos and of tho Territory, is further sustained by several acts uf Congress which tend to explain what the highest law-making poyer of thoCovernmcnt intended. Tho act of Juno Hi, 1850, provided that "tho J udges of the Supreme Court in each of tho Territories, or a majority of them, slull, whon assembled at their respective seats of government, ilx and appoint the sovoral times and places of holding tho icveral courts in their respective re-spective districts, and limit tho duration dura-tion of the terms thoreol : provided, that tho said courts shall not be held at moro than tlireo places in any one Territory." Ter-ritory." Tho act of Juno 11, 18G8, seems to have been a modification or amendment of that of lb-iO, and provides "that the Judges of tho Supreuie Court ot each Territory of tho UnitedStates arehcrchy authorized to hold court within their respective re-spective districts, in tho counties wherein, where-in, by the laws of said Territories, courts have ben, or may bo established, for the purpose of hearing or determining all matters and causes except those in which tho UnitedStates is a party : provided, that the expenses thereof shall be paid by tho Territories, orcouities in which said courts may be held, and tho United States shull, in no case, bo chargeable therewith." there-with." The act of March 2, 1807, amendatory of the 15th section of the Organic Act of Idaho, provides, "that the J udges-of tho Supreme Colrt of said Territory, or a majority ol'tuem, shall, when assembled at tho Beat o!' government of said Territory, Terri-tory, define tho judicial districts of said Territory, aad assign tho Judges who may be appointed for said Territory to the several districts, and shall ako fix tho times and places for holding court in the several counties or subdivisions iu each of said judicial districts, and alter the times and p. aces of holding the Courts, as to them shall seem proper and convenient." con-venient." From all tl ree of these acts we are to conclude: let, That in all causes where tho United 6.ates h a party, trials can be had in but one place in each district; 2d, Thatin all causes where tho Territory ia a party, trials can be had in such counties coun-ties or subdivisions in each J udicial District Dis-trict as shal. seem proper and convenient to Judges; and 31, That the United States is in no case chargeable with the trial of any cause wnere the U nited States is not a party. It certainly cannot, with reason, be contended tl.at the crimes of arson, burglary, bur-glary, rape, robbery or murder are violations viola-tions of me laws of the United States, in this Territory, any more than they would be in the State ot California, The Legislature Legis-lature has provided for th manner of tlie trial of all such otfenses, aud the modeand extent of the punishment in all such cases; aud if it te the right of the relator to appear as the public prosecutor prosecu-tor in all cases where there is a crime committed against the laws of the Territory, Terri-tory, it is hisSitry so to appear; and if it is his duty, it is nis right to be paid. Congress has said that "the United States snail ia no case be chargeable" with such expenses, and has, by an act of July 15, 1870, relating to Idaho, enacted, en-acted, ""that all acts and parts of acts heretofore passed by the Legislative Assembly As-sembly of said Territory that provide for the payment of salaries or extra compensation compen-sation outof the Territorial treasury, to officers holding commissions by Federal appointment iu said Territory, are hereby here-by disapproved of and annulled; and the Legislative Assembly is hereby prohibited prohib-ited from making any appropriation from the treasury of said 'territory to any such officers or persons, under any pretense of adding to or increasing their compensation as fixed by the United States." From which we must understand under-stand that the General Government in-tend in-tend to confine the relator to such fees and salary as are provided for him by the acts of Congress. Again: by act of Congress Con-gress of March 3, ISOo, it was provided that "the superior courts of the several Territories of the United States, in which a district court has not been established by law, shall, iu all cases in W'hich the United States are concerned, have and exercise, within their respective Territories Terri-tories the same jurisdiction and powers which are by law given to, or may be exercised ex-ercised by, the District Court of Kentucky Ken-tucky district," and by act of Congress of April 18, 1806, it was enacted, "the provisions of theact entitled 'An act for providing compensation for marshals, clerks, attorneys, jurors and witnesses, in the courts of the United States, ifcc, &c.,' passed Feb. 28, 1799, he and the same is hereby extended to the Territories of the United States, so far as the said act may relate to the provisions of the act entitled 'An act to extendjurisdiction in certain cases to the Territorial courts,' rassed .March 3, 1805." From.the last act quoted we are to understand that when the United States district attorneys for the Territories were in the discharge of their duties in aid of the Territorial courts, when transacting trans-acting such business as was conferred upon them by the act of March 3,1805 that is, were engaged in trying cases in which the United States were concerned con-cerned then, as to compensation, the act of Feb. 28, 179?, was to control. These acts, s,q far as the question of compensation is involved, are still in force ; except that the fee bill act ha3, from time to time, heen, changed, amended or modified, but in no instance has its application to the distriot attorneys attor-neys for the Territories been changed, and the fee hill aot of Feb. 26, 1853, was so amended by the act of March 2, 1855, as to apply to the then existing Territories Terri-tories of Minnesota, Utah and Xew Mexico, as fully, in all particulars, is if the word "Territories" had been used alter the word, "States," and had read, "in tha several States and in the Territories of the United States," To assume any other position than, the one we think correct, would he to require the relator to perform duties for which Congress has said that the General Gen-eral Government will neither pay him nor allow the Territory to pay him, and we doubt if the relator would desire even that such a duty should be imposed upon him without compensation, even if the-Government the-Government should be so unjust and unreasonable un-reasonable as to require it. While we de not doubt the power of Congress to do as it will with, a Territorial Territo-rial government, even to the doing away ffith it entirely, the line between the United States and Territorial authority is as plain to us, under existing laws of the General Government, as is the line be? tween Federal and State authority. While very little authority has been extended ex-tended to the Territories, in comparison with that to which the States are entitled, so far as such authority has been extended, exten-ded, it can be exercised as freely and fully as State authority ; both being subject sub-ject to Constitutional restrictions and checks, vested in that supreme power, the General Government of the United States, whenever either s.a,ll have gone beyond its authority. Judgment of the court below reversed, with costs to the appellants. WHITSON, Justice. Nogolz, C.J., Concurring. Lewis, J., Dissenting. ' |