Show THE MANDAN 9 CASE DECISION OF THE SUPREME COURT THE DE DEMURRER HURREn SUSTAINED in the matter of the petition and affidavit of george ceorge it lt maxwell for writ of mandamus mm damus directed to robert T burton assessor and register of salt bait lake county territory of utah SUPREME COURT OF THE I 1 TERRITORY OF UTAH f sutherland ISIC mcbride Bride I 1 for lor or Re relator latof 1 I zera zerk now bow snow snow J JL L rawlins richards williams williams bennett A miller miner harkness respondent ident F for or respondent A petition was presented to this court at its present session by the relator relater tr for a writ of mandamus to compel robert T bur burton toil toti assessor and register of voters for salt lake county utah territory to erase and strike from the list of voters of salt lake county made by him the name of the following persons viz emeline B wells wellse maita malta ysl lyl blythe andars and mrs A G paddock and also the names of all women whose names mames thereon appear on the aforesaid list or that he show cause before this court on the day of september why vily drilias not done so also that in the meantime the said officer be ordered not to return said list or any copy thereof to any election officer until the further order of this court an alternative writ was ordered at nt the time of filing the petition and the cause came u up forbearing for hearing on thedac the day mentioned menti oner in the alternative writ to wit sept 29 1880 the respondent on the day fixed for the hearin hearing Lr appeared by counsel who interposed a demurrer to the tiie petition and writ assigning as grounds 1 that this court has no j jurisdiction of the subject of this action 2 neither the petition nor writ herein state facts sufficient to constitute osti tute a cause of action thus raising two questions for the determination of this court it has been heretofore held by the isu sSu supreme preme court of this territory in the case ease of clipperd Slip perd va vs the 2nd and district court that this court has no or original jurisdiction to issue mandamus except to enable it to exercise its appellate jurisdiction and the court an in that case cl cites eltes tes sections 1907 and 1839 of the revised statutes of the united states and the ad section of an act entitled can rau an act in relation to courts and judicial officers an in the territory of utah poland d law which are as follows see sec 1907 the judicial power in utah shall bo be vested in a supreme court district court probate court and the justice of the peace sec see 1839 the jurisdiction bolli bolh appellate and original of the courts provided for far by section 1907 shall be limited by law jaw sec 1830 writs of error bills of exceptions and appeals shall he allowed in all ca cases eases es from the final decisions of the district court to the supreme court of all the territories respective respectively y under such sueh regulations as maybo maybe way may be provided by law but in no case removed to the supreme court shall trial by jury be allowed in dharcourt tham court third section judicial act tho rhe the fhe district court shall have llave exclusive original jurisdiction in all an suits and proceedings in chancery and in all actions at av law in ln which the sum m er or vi value of the thing in controversy shall be or upwards the supreme court in passing upon these thee laws in the decision cited says regarding the acts of congress as the supreme law of the territory having hawig a controlling power similar to if it not riot extensive coextensive co with the tiie constitution ution of I 1 any afy particular state over their respect i e c Legislature legislatures i and judicial de departments we are forced to the conclusion conclusion that in so far as section of our out practice act which provides that the writ of mandamus may bc issued by any court of this territory except a justice of the peace is in conflict with the acts of congress Ss above referred to it is wholly who ly j inoperative operative and void the decision of the court is based upon the theony theory that the acts of congress Con aress in reference to the courts refert ed d to are paramount territorial Tit rit orial legislation in this thedr theory we now concur and if there therb is any I 1 congressional U 1 enactment lymich has i y ass des iss the effect of making inoperative and void section of the practice act then tilen of course the act is void so far as it confers upon this court power to issue mandamus except in the exercise of its appellate jurisdiction itis it ils jis insisted that the third section of the act in relation to courts and judicial officers in the territory of utah as above quoted resolves that question to a certain extent said third section has lias the effect of limiting the jurisdiction of this tilis court but only to that certain extent it confers upon the district court exclusive original jurisdiction in all suits or proceedings in chancery and in all actions at law in which the sum or value of the thing in controversy shall be three hundred dollars or upwards to determine therefore whether the congressional enactment destroys the legislative enactment we must look into the character of the proceeding wherein the rule is h ought nought tole told to be applied clearly if the case is a suit or proceeding in chancery then the exclusive original jurisdiction over it is in the district court and if the case be an action at law to which the sum or value of the thing in controversy shall be three hundred dollars or ap wards then the exclusive original jurisdiction over it is in the district court but if it is not a suit cr proceeding in chancery or it is not a suit at law wherein the sum or value of the thing in controversy 1 ii three hundred dollars or upwards then the district court does not by virtue of the third seeton section obtain the exclusive original jurisdiction the poland bill nill confers upon justices of peace jurisdiction in all cases where the debt or sum claimed shall be less than three hundred undred li 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 undred li dollars sec of the practice act provides that the writ of mandamus may be issued by any court in this territory except a justices to any inferior tribunal corporation board or person to compel the performance of an act which the law specially c enjoins eoe jol ins as a duty resulting from an office cc trust or station under this provision the relator has applied to this court for the writ and the demurrer interposed to his complaint and affidavit raises jurisdictional the question and in resolving that question it becomes our duty to apply theoule tiie tile rule ruie of construction heretofore referred to the case is not a suit or proceeding proceed ine inc in chancery and therefore the district court has bas not exclusive original jurisdiction over it nor is the amount involved in it or upwards nor is it less than it has no donled value whatever and has no elem element eyt calling for the chancery powers of the court but it is of that class of cases casts 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 daffler ence in the offee office of the two writs viz mandamus and certiorari the former is termed in our statute a writ of mandate and the latter is termed a 0 writ of review clearly in the one ease 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 runal proceedings roce edings had by some infer Inter inferior lor tribunal wherein there is alleged error or other informality in the proceeding which the super superior for fon court issues the writ desires to review to ascertain if or not error or ov informality exists in the case of the writ of ceraio have no doubt of the power of to issue assue it for the purposes prescribed by the statute in ese of the writ of mandamus dam Ms rhoid arhold F hold hoid it can only be bissu issued ed inthe in the particular cases provided by the statute and iid lid that the statute limits the power to isue issue it to such cases wherein it is sought to compel the pe performance of any act lyl tyl lich ilch tl thela iela lela leia specially s pe el la ily liy enjoins as a duty resulting from an office trust or station I 1 his case ease is not of the kind here herd 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 lie he h has as failed or refused to perform but we are bre ask asked e d to compel him to undo ulida hi an ll 11 act which the law compelled him to do and lie he has done this we cannot do tb the e validity of the thel lav law which imposed the dut duty upon the respondent ier ltv i 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 n now ow asked to compel him to undo we cannot for the purposes of this proceeding inquire into its validity H having abing I 1 sa satisfied ourselves that the duty required aired by the statute to be performed ad 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 connot go and tind this court could not compel him to exceed the functions of his office in this case it was the duty of the respondent t to enter the names upon the register and baving having so entered them he could not afterwards legally erase them and if lie could not then this court cannot through the agency of the writ of mandamus m anda mus compel him h lm to section 2 of the act of feb 22 1878 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 pre preceding precede cedi g registration list and proceed to the tile revision of the same and for this purpose he shall visit every dwelling house in each precinct and make careful inquiry if any person whose name is on his list has died or removed from the precinct or is otherwise disqualified as a voter of ok such precinct and if so to erase the same or whether 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 I 1 imposes m S upon the registration office officers r sio the h e eskut duty of visiting every dwelling house in each precinct and of making careful inquiry as to any or all persons en entitled to vote and to ascertain upon what ground such person claims to be a voter and shall require each person y on entitled to vote and desiring to be registered to take and subscribe an oath in form or substance as abl therein prescribed section 3 provides that it shall be the duty of each assessor jr in L person or by deputy during the week commencing the first monday in june of each year at his office to enter on his registry list the name of any voter that yay may aay have been omitted on such voter appearing and complying with the provision of the first section of this act required for voters for registration purposes by section four he is required on the completion of this list tomake out a lista list in alphabetical order for each precinct and to deliver the same on or before july first in each year with all the affidavits to the clerk of the county court having performed the duties thus prescribed the functions of the assessor cease conse and alid he hp has no further duty to perform 1 in 4 regard to 0 that registration list until the beginning of the year 1880 and havin hatin having for that year pursued the same course he lias has no further duty to perfo perro perform nii nid with the list for 1880 until the beginning af the 1881 and the list for fon 1880 isso is the on efrom which it is now sought to have the erasure made this same act of feby 22 1878 provides how the name of any person in said registration list may be stricken and by whom it shall be done see fosec sec 7 the clerk of the county court shall file and carefully preserve all said affidavits and registry i lists and shall make a copy of each 3 Pro precinct registry list and cause the same to be bp posted up at least 15 days before any election 1 at or nea la the place of e election I 1 cc tion a and n 3 sha shall 11 ma make h 6 alid and transmit another copy to tb t judges of election sec 8 the clerk of the count court s shall ball cause to be printed v r yv written ritten a notice which shall des nate the offices to be filled andl andi and stating that thac tho the election will commence at designating the place for b holding the polls one hour after sunrise and continue until sunset on the day of IS 18 naming taming 1 the day of election dated at A D 18 clarc of 0 county court A copy of which shall he bb posted up at least 15 days before the tho election in three public places in said precinct best calculated to give notice to all voters it shall also b be the duty of the clerk of the count county court to give notice on the lists ja posted osted that the senior justices the peace for said phe Pie precinct elnet will h r 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 shall issue a written notice to the person objected to stating the place day and hour when the tho 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 tile hearing of the case if said justice shall find that the person objected to is not a qualified voter he shall within three days prior to the elect election loii transmit a certified list of the names of all such u unqualified qualified 11 persons to the judges of if 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 within the jurisdictional powers of this court it is the law illat that it eau can be directed to an officer to compel him to do a mere ministerial act which the relator has a right to have done by him 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 refused to do chief justice taney in the case of the state of mississippi vs johns mir 4 wall has given a clear definition of a ministerial duty he says A ministerial duty the performance for mance of which may in proper cases be required is one in which nothing is left to discretion it is a 81 simple M ale 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 I 1 registration lists mere ministerial dut duties les ies if they are and he has refused or neglected to perform them he be undoubtedly could be compelled by mandamus to perform them following the definition given to fra fla a ministerial duty as above quoted these acts do not fall within it to be be ministerial nothing is to be left to the crefton dis of the assessor in the case at bar one of the duties imposed upon the assessor is to ascertain upon what grounds any |