OCR Text |
Show WOMAN'S E X PON EN T 78 Fee. 1,869. "The jurisdiction both appellate imd original of the courts provided for by eec-- l ion 1,907 shall be limited by.law." Bee. 1,830- - "Writs of error, bills of exceptions and appeals shall be allowed In all cases from the final decisions of the District Court to he Supreme Court of at! the Territories, respec-- f ively, under such regulations as ma be provid-t-- d by law, but in no case removed to the Su-- j rerae Court sliall trial by jury be allowed in "that court." Third section Judicial act. "The District Court shall have exclusive jurisdiction in all suits and proceedings iu chancery, and in all actions at law in which the sum or value of the thing in controversy shall be $300 or upwards. The Supreme Court in passing upon these laws, in the decision cited, says: ' as the Su- ''Regarding the acts a the law of reray Territory having controlling ' owcr similar to, if not with the over of their constitution any particular State e Logisiii'ure and judicial departrespe ment ";eare forced to the conclusion that, in ve o fa j rovides that le is any Court of this Territory, except a Justice of the Peace, is in conflict with the acts Mjed by -- 4J.o'our Practice Act, which tJie writ of maudamus may Congress above referred to, it is wholly inoperative and void. The decision of the Court is based upon the theory that the Acts of Congress in reference ! the courts referred to, are paramount to all In this theory we now tx'rritorial legislation. nour, and if there is any Congressional enactment vhtch hak the eiferl of making inoperative :md void, Section 443 of h practice Act, Uien of course the Act is void. So r&r ay j i infers v.pon this court power to issue mandamu except in the exercise of its appellate jurisdiction. Ic is insisted that the third section of the Aet in relation to courts and judicial officers in the Territory of Utah as alwve quoted, resolves that fjuestion. To a certain extent said third section has the effect of limiting the jurisdiction of li is court, but only to that certain extent. It upo&t$u District Court, exclusive, orig. X ifkra inal wisdietio iXvk fl.'g.j,ph) " chancery, and in all actions at law in whYcfi 'the'" ' sum or value of the thing in controversy shall .: three hundred dollars or upwards. To determine therefore whether the Corigres--on- al enactment destroys the Legislative enactment, we must look into the character of the proceeding wherein the rule is sought to be a p- -; lied. Clearly if the case is a suit or in chancery, then the exclusive original Jurisdiction over it is in the District ( Jourt; and if the case be an action at law to finch the sum or value of the thing in cou- rovefsy shall be three hundred dollars or upwards, then the exclusive original jurisdiction .ver it is in the District Court. But if it is not a suit r proceeding in it is not a suit at law wherein the sum or value of the thing in controversy is three hundred dollars or upwards, then the District Court does not by virtue of the third section rbtain the exclusive original jurisdiction. The Poland Bill confers upon Justices of Peace, j irisdiction in all cases where the debt or sum claimed shall be less than three hundred dollars, thus giving to Justices' Courts concurrent jurisdiction with the District Courts in such cases where the amount in controversy is less than three hundred dollars. Sec. 445 of the Practice Act provides that the writ of mandamus "may be issued by any court i.i this Territory? except a justice's to any tribunal, corporation, board or person to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust or station." Under this provision the relator has applied to this court for the writ, nd the demurrer interposed to his complaint rnd affidavit raises the jurisdictional question, ind in resolving that question it becomes our .'uty to apply the rule of construction heretofore leferred to. The case is not a suitor proceeding in chancery, and therefore the District ourt has not exclusive original jurisdiction ever it, nor Is the amount involved in it$300 or pro-i-eedi- ng chan-;;ery,- in-lerio- or r1 upwards, nor is it less than $103. , It has no monied value whatever, and has no c!pmnt eallincr for the chancerv mvpN nf iha Murt, but it is of that class of cases in which the practice act confers upon this Court, under the broad term any court, jurisdiction to issue writs of mandamus. To my mind there is a wide difference in the iifflceof the two writs, viz., mandamus and ertoirari. Tha fnrmcr ia trmr1 in nur ft fn. tut A ft lirrit Of mandate and the latter is termed a writ of re- the erasure made. This same act of Feb'v 29 how the name of any person in 1878, provides said Registration List may- be stricken there, -from, and by whom it shall be done. "Sec. 7. The Clerk of the County Court shall file, and carefully preserve all said affidavits and Registry Lists and shall make a copy of each Precinct Registry List, and cause the same to be posted up at least 15days before any election at or near the place of election, and shall make view. - Clearly in the one case looking to the enforcement of some act or duty refused to be done by an officer in the execution of a trust which by law he is required to do or perform. In the other looking to certain proceedings had bj' some inferior tribunal, whereiu there is alleged error or other informality in the proceeding which the superior court issues the writ, desires to review, to ascertain if or not error or informality exists. In the case of the writ of certiorari, I have no doubt of the power of this court to issue it UIJU Election. fr inaycu J UUETCS I.I . 1 t3'ai4i I MJ IIIUI. If . . IU ..1 Wr W1 in I II (1111 I cll vuvwuuv -- by-him- Havinc rxrfnrmtl tK A,n i uuwra "jus prescri'ed. ,the Assessor cease, and he has fnrT Perforata regard to that List, until the year 1830, and having for that year purlued the he T?f nJfdU! nV,urth dut't0 List for 180, until beginning 0f the year 1881, and the List for is the one from Prm 188? which it is now sought to have TV .- refused to do. . Chief Justice Taney in the case of The State oj Afimmppi vs. Johnson 4. Wall 475 has given a clear definition of a ministerial duty. He says: "A ministerial duty, the performance of which mayj in proper cases, be required, is one in which nothing is left to discretion. It is a simple, definite duty, arising under circumstances admitted or proved to exist and imposed by law." Are the duties required of the Assessor in relation to registering persons and preparing the Registra- - tiou Lists, mere ministerial duties? If they are, and he has refused or neglected to perform them, he undoubtedly could be compelled by mandamus to perform them. Following the definition given to "a ministerial duty" as above quoted, these acts do not fall within it. To be ministerial, nothing is to be left to the discretion of the Assessor. In the case at bar, one of the duties imposed upon the Assessor is to ascertain upon what grounds any and all persons claim to be voters, and he is furthermore required to make careful inquiry if any person whose name is on the list has died or removed from the precinct, or is otherwise disqualified as a voter. These are all duties which require investigation, research and opinion, discretion and consideration. He must form a judgment and act upon that judgment and it is incumbent upon him to exercise discretion in arriving at that judgment. He has the discretion upon the judgment formed by him from the inquiries he is required to make, to erase from the Registration List of the preced" t Of compel him to do a mere ministerial act which the relator has a right to hava, done-.and as to which the officer has no discretion. But it must be to compel him to do a mere ministerial act, and this act must be one which by law he is required to perform and which he has - alphabetical order, for each and to den ver Precinct, ?i?hSethen J"?1 JuI firsfc in each affidavit?, to th nwt nf th tlTf Lil U Clerk of County Court. A copy of which shall be posted up, at least 15 days before the election, in three public places in said Precinct, best calculated to give notice to all voters. It shall also be the duty of the Clerk of the County Court to give notice on the lists so posted, that the senior Justices of the Peace for said Precinct will hear objections to the right to vote, of any person registered, until sunset of the fifth day preceding the day of election.. Said objections shall be made by a qualified voter in writing and delivered to the said Justice who f hall issue a written notice to the person objected to, stating the place, day and hour when the objection will be heard. The person making the objection shall serve, or cause to be served, said notice upon the person objected to, and shall also make returns of such service to the Justice before whom the objection shall be heard. Upon the hearing of the case, if said J ustiee shall find that the person objected to is not a qualified voter, he shall, within three days prior to the election, transmit a certified list of the names of all such unqualified persons, to the Judges of Election, and said Judges shall strike such names from the Registry List before the opening of the polls. . Granting that the issuance of this writ is with- a it & t r w on the tlirM nrfofu,;h quired, make list, out a list, in Court tiv 18. names upon the reglster,and having bo entered ttbe . janojc warJsJywsehem and if he could not,' then' thisCburt ::&mim through the 'agency of the writ of mandamus , cempel him.to. Section 1 of the act of Feb. 22, 18787 provides that it shall be the duty of the Assessor of each county in person, or by deputy, at the time of making the annual assessment for taxes in each year, beginning in 1879, to take up the transcript of the next Registration List and proceed to the preceding revision of the same and for this, purpose he shall visit every dwelling house in each precinct, and make careful inquiryif any person, whose name is on his has died or removed from the precinct, orlist, is otherwise disqualified as a voter of such precinct, and if so, to erae the same therefrom, or wiieuier any qualified voter resides therein, whose name is not on his list, and if so to add the same thereto in the manner provided in the preceding section. The preceding section imposes the Registration Officers the duty of visitingupon every dwelling: house in each precinct and of making care-fu- l inquiry as to any or all persons entitled to vote, and to ascertain upon what ground such person claims to be a voter, and shall require each person entitled to vote, and desiring to be registered, to take and subscribe an oath, in form or substance as therein prescribed Section 3 provides that it shall be the duty of each Assessor in person or by deputy, the week commencing the first Monday induring June of each year at his office to enter on his Registry List the name of any voter that may have been omitted on such voter appearing and complying with the provision of the first section of thisact required for voters for registration pur- - MUWUl. VAJJl Sec. 8. The Clerk of the County Court, shall cause to be printed or written a notice which shall designate the offices to be filled, and stating that the election will commence at (designating the place for holding the polls,) one hour after sunrise, and continue until sunset on the day of , of the election.) day (Naming Dated at A, D. for the purposes prescribed by the statute. In the case of the writ of mandamus, I hold it can onljT be issued in the particular cases provided by the statute, and that the statute limits the power to issue it to such cases wherein it is sought to compel the performance of any act which the law specially enjoins as a duty resulting from an office, trust or station, his case is not of the kind here spoken of. The officer against whom this writ is directed has performed his duty. We are not called upon to command him to do any duty he has failed or refused to perform, but we are asked to compel him to undo an act which the law compelled him to do and he has done. This we cannot do. The validity of the law which imposed the duty upon the respondent to enter the names of the persons named in the register, cannot be brought into question in a proceeding of this kind. We find that there is a law on 'our statute books in reference to registration, compelling the respondent to do what we' are now asked to compel him to undo. We cannot, for the purposes of this proceeding inquire into its validity. Having satisfied ourselves that he duty required by the statute to be performed, has been performed, nothing is left for us to do. The office of the writ is not to require the respondent to do something not within the scope of his official authority. Beyond that he cannot go, and this court could not compel him to exceed the functions of his office. In this case it was the dutv nf th wi . ing "year any name that may be thereon. All these acts are not therefore mere ministerial duties, but are duties as to which the officer has a discretion, and are therefore not such duties which he can be compelled to do through the agency of the writ of mandamus. It was insisted in argument by counsel for the relator, that the court has the power by mandamus to compel the respondent to perform an act not within the scope of his authority, if his refusal to do the act would work an iDjory. |