| Show AFTER THE OFFICES the tha Goi governors ernora appointees commence their struggle from I 1 tile lie salt lak luke 0 li terald in the district court yesterday saturday morn ing the arguments ot of counsel in ll 11 alib to case 0 of tho the people ex es rl rel against N vi IT clayton claton were resumed judge sutherland speaking the entire time until recess at 1215 12 15 on the motion for in da men t 1 aich Is substantially na as follows ow s 11 we V e move the said aid court for judgment J against the said defendant that he is ia guilty of usurping and intruding into the said gaid of A auditor of public accounts in and for said territory of 0 utah and of milaim unlawfully fully holding and exercising T the same baine and that lie he to le excluded from till said enid office and adjudged to pay the costs of sar said action pay llie lie judge mado made an able clear and forcible speech in support ochia several points the first of which was BBS that the defendants have put pat tn in issue the material facts alleged in the complaint as constituting sti the cause of action namely the original intrusion and the I 1 resent present holding and exercise of the functions of the ilia olliee ho maintained that the second and third paragraphs of the complaint were ero redundant jand and scandalous that thai they should lo be 10 stricken out as there was na no Isau able fact there stated lie maintained that the statement even of a defective 0 title to the office in in the second sei ond defense does not relieve 0 the plaintiff of the necessity of iding tho by the denials and an 1 claimed that an admission in ili one defense can not li ie read by the court to controvert a denial ili in another the second point made was that tl at the complaint coin coh plaint did not state a cause of action within tt the statute in the course odthe of the judges remarks reina iks on tins this portion of his argument he fie stated wit with t considerable fo 01 co that gravamen of the charge if Is possession at the commencement of on an office under such circumstances as marks such auch possessions usurpation the character of the original entry in 1879 or 1880 lie he said bald was n as not mat material erfAl I 1 no issue could be joined as aa that allegation for a finding of the fait fact could not v warrant arrant tiny any judgment at mobel most it was an evidentiary fact it was not mot conclusive a eviden e identa cU of unlawful possession at it a later day clay anil and lit in a subsequent term the incon clu siva she probate facts stated in the pleadings were ere wholly holly disregarded ca copious P i extracts were nero road read from hariu authorities 1 hor ties in support of his stand in this regard the allegation na as to the defendants present connection with tho the officio was n as that tho defendant holds holda and exer alses tho that functions of the alio office without tile authority of law lie he continued was not well hell Bup supported ported there were tero no facts stated from which the court can judicially infer a holding contrary to luw law there was simply a legal conclusion ablon stated I 1 there was v as only one way he continued in title to the alica 0 could be obtained the fact should be ba stated it if true that the defendant ww wits not elected or appointed to the tha other office as the caso case required aired As the complaint compla iut stated a long possession and no fact rendering it wrongful itri ing ful or unlawful I 1 lie a maintained thatis eliat it must do de a rightful and n d idencio ovid enco of title tile ilie 80 r tbt d court ju r 1 c alon the judge remark ed ad to issue a writ of wo quo but th the e plaintiff had ha i seen fit to bring a civil ac action tion that writ was a judicial ant and put the defendant at once to tho the al a li ter native of disclaiming or justifying if ho he defended lie he must show by it v hat authority ho he held no such writ lind had been issued in this thia caso case or applied for A summons was not inot a judicial writ the summon a issued required the defendant it 19 to answer tho complaint c as in other ac tiona tons the ibe complaint must state a case consisting of facts these facts acta when denied must mast be proved the tha plaintiff had bail the burden of 0 proof the ilia defendants was VIM not charged with any usurpation usurpation ol of office the gentlemen gentl emea pre proceeded ceede to argue but only ot of the functions unc of an office the complaint conor hint dil did not state a case within the statute viding idina a remedy for nn an usurped offidean office ceAn an la Is a position created by law laft in ill which flach the incumbent has a right and owes os ft a duty to execute a public trust and to tte take the emoluments belonging to it A function pertained to the incumbent and signified ein ined the exercises of the aba right in the respect of the trust the performance of the duty i henc heineg tin an office is functionary iho pleader lie he said had departed from the language of tho the statute tute and unless the words used are the biame co covering no more and no leai 8 the statutory case was not stati elated T 0 the allegation that the defendant held and exercised the functions of the ollice office he ha submitted vaa mas not identical sith nor equivalent c equi qui to a charge that lie held and exercised the the statement of the acts constituting an must bo be technically exact the third ground taken by I 1 mr sutherland Is nil was the defendant state affirmative etya ely a good title to the tha offices if they exist in 1 support I ill of this state t lie he Iiii insisted with 1 considerable fore force 0 and I 1 n a precision r r c ision that the defendant hag w as tho t ho incumbent libent of the office impliedly implied v treated created by the law directing dir eLtIng how an auditor and treasurer shall be selected and ho he was aa the incumbent ly by election by tile precise mauner manner prescribed ly by the statute which he quoted and reads ki hhall hall be elected for four years and until their successors are elected end and gifted 11 another act precisely similar to the ono one in question bad been declared valid by the supreme court of the united states clinton vs a engel brecht and snow vs the united states if the law prescribing the mode of electing him was waa void then there was no office Nume numerous roua extracts from authorities were read by the judge and duly noted by b the counsel usel tor for plaintiff ico in co conclusion im in to judge briefly stated point and then il it was thattie that the relators rela re latora tors had bad no title the iho governor Oo vernor had no power to appoint to oil fill tho vacancy vacancy except in the cases mentioned in section 1858 ol of the united states statutes it there was a vacancy it did not hap happen by death or resignation mr air williams wil iea iams on behalf of 0 the plaintiff or as an the same matter related to the caso case against james jack rerat 12 was about to begin an argument arpi nent but considering consid cring the nearness of tho the time tor for noon recess lio lie suggested deferring deferris de ferrin his hia argument until t the te af afternoon to bitoon judge z g zano remarked that I 1 he Is had oilier a alier matters m a aters to attend att end to then so BO tho the further arguing of the motion was waa postponed until monday at 2 yesterday arguments were nero continued I 1 P L williams argued in liis its own behalf and d dickson helping him biro arthur brown was to tile the case for treasurer jack anti and auditor clayton toun to adny un |
