Show THE CLAYTON CASE I I Judge Sutherland Argues Strongly for the Defense A CLEAR CONCISE SHOWING < The Governor Had Jfo Power to Appoint to Fill the Vn ancjr Sari tho Judge In the District Court yesterday morning morn-ing the arguments of counsel in the case of The People ex rel againstX W i Clayton were resumed Judge Sutherland I Suther-land speaking the entire time until recess re-cess at 1215 on the motion for judgment judg-ment which is substantially as follows fol-lows We move the said Court for I judgment against the said defendant that he is guilty of usurping and intruding Ii in-truding into the said office of Auditor of Public Accounts in and for said Territory Ter-ritory of Utah and of unlawfully holding hold-ing and exercising the same and that he be excluded from the said office and adjudged to pay the costs of said action The Judge made an able clear azd forcible speech in support of his several points the first of which was that the defendants have put In issue the material mater-ial facts alleged in complaint as constituting con-stituting the cause of action namely The original intrusion and the present holding and exercise of the functions of the office He maintained that the second and third paragraphs of the complaint wee redundant and scandalous tna they should be stricken out as there was no iisuable fact there stated He maintained that Inc statement even of a defective title to the office in the second defense does not relieve the plaintiff of the necessity of proving the usae made by the denials and claimed that an admission ad-mission in one defense can not be read by the Court to controvert a denial in another The second point made was that the complaint did not state a cause of action within the statute In the course of the judges remarks on this portion ot his argument he stated with considerable force that the grava men of the charge is possession at the commencement of the action of au office under such circumstances as marks such possession usurpation The character of the original entry in 1379 or 1SSO he said was not material no issue is-sue could be joined as that allegation for a finding of tho fact could not war rant any judgment At most it was an evidentiary fact It was not conclusive evidence of unlawful possession at n later day and in a subsequent term the inconclusive probative facts stated in the pleadings were wholly disregarded regarded Copious extracts were read from various authorities in support of his stand in this regard The allega tion as to the defendants present connection with the office was That the defendant holds and exercises the functions of the office without the authority of law therefor continued was not well supported there were no facts stated from which i the court can judicially infer holding contrary to law there was simply ale a-le al conclusion stated There was only one way he continued in which title to the office could be obtained The fact should be stated if true that the defendant de-fendant was not elected or appointed to the office as the case required As the complaint stated a long possession aud no fact rendering it wrongful or unlawful he maintained that it must be a rightful possession and evidence of title The Court had jurisdiction the judge remarked to issue a writ of QUO wrrano but the plaintiff had seen fit to bring a civil action That writ was a judicial writ and put the defendant at once to the alternative of disclaiming or justifying If he defended he must show by what authority he held No such writ had been issued in this case or applied for A summons was not a judicial writ The summons issued required the defendant 1 to answer the complaint as in other actions The complaint must state a case consisting of issuable facts these facts when denied must be proved The I plaintiffhad the burden of proof The defendant was not charged S with fiTit ncmnntln nr ffnr rho gentleman proceeded to argue but only of the functions of an office The complaint com-plaint did not state a case within the statute providing a remedy for a usurped office An office is position created by law in which the incumbent has a right and owes a duty to execute a public trust and to take the emoluments belonging to it A function pertained to the incumbent and signified the exercise of the right in respect of the trust the performance of the duty hence an office is functionary function-ary The pleader he said had departed de-parted from the language of the statute and unless the words used are the samecovering no more and no less the statutory case was not stated The allegation that the defendant held and exercised the functions of the office he submitted was not identical with nor equivalent to a charge that he held and exercised the office The statement state-ment of the acts constituting an offense must be technically exact The third ground taken by Mr Sutherland was The defendants state affirmatively a good title to the offices if they exist In support of this statement state-ment he insisted with considerable force and precision that the defendant was the incumbent of the office im phedly created by the law directing how an auditor and treasurer shall be selected and he was the incumbent by election in the precise manner prescribed pre-scribed by the statute whih he quoted and which reads Shall be elected for four years and until their successors are elected and qualified Another act precisely similar to the one in question had twice been declared valid by the Supreme Court of the United States Clinton vs Engelbrecht and Snow vs the United States If the law prescribing the mode of electing him was void then there was no office i i Numerous extracts from authorities wens read by the judge and duly noted i I by the counsel for plaintiff I conclusion the judge briefly stated his final point and then subsided Id was that the relators had no title tne Governor had no power to appoint to I fill the vacancy except in the cases mentioned in Section 1S5S of the United I Slates Revised Statutes If there was a vacancy it did not happen by death or resignationS I Mr WMams on behalf of the plainr S tiff or plaintiffsas the same matte related to the case against James Jack 1 Treasurerat 12 oclock was about to begin an argument but considering the nearness of the time for noon recess he suggested deferring his argument until the afternoon Judge Zane remarked that he had other matters to attend to then so the further arguing of the motion mo-tion was pstponed until Monday at 2 oclock |