Show tee TSE eaid SAID UPON THE LOCAL OFFICES THE AUDITORS AND CASES answer and demurrer in the third district court this in orning morning chief justice hunter on the bench the case of the people of the territory of utah cs ex re arthur pratt va vo theo mckean and the people of the territory of utah ex rel george C douglas vs nephi WC W OI layton ayton involving respectively the title to and possession of the omm offices of sheriff of this county and that of territorial auditor of public accounts came up for argument aa therland sutherland and mcbride marshall marahall and royle royie roy ie and others appeared in behal behalf of the plaintiffs sheeks and rawlins harkness and kirkpatrick rosborough Bos boy borough and merritt arthur brown and others appeared in be half of the people chief justice hunter on receiving intimation that counsel were ready to proceed stated that he proposed to limit the time to today to day and tomorrow to morrow for hearing the arguments in the cases two arguments on each side bide which he thought would be sufficient mr air rawlins opened the case on the part of the tho respondents and commenced by reading the pleadings therein as follows wo wc give the papers in the clayton case ease those in the being similar with tho the exception of namee namen district court third judicial rudi cial dle die trial county of salt lake utah YeM territory tory lory 4 the people of the territory of 1 I utah es ex cl geo C 0 douglas plaintiff L 1 vs f 2 nephi W clayton clay ton j defendant J the defendant nephi W clay olay ton answers herein and denies that the plain plaintiff tim tIT on the day of september 1882 or at any time web wes duly appointed to the office of anditon of public accounts of tho territory of utah aud and denies that the plaintiff on the day of september 1882 or at any time was commissioned auditor of public accounts of bald said territory or that raid said plaintiff at any time timo has been beoo ors or la tho the duly appointed 0 eona cona commissioned mis mib auditor of public accounts of said territory or entitled to said office or any books accounts or property belonging or pertaining to baid said and on information and the defendant alleges that the baid eaul george C douglas has noi not at any time given or offered ared to give a bond conditioned for the faithful faith falth fai fal herfor performance n of the duties of baid eaid office to the Torri territory tor y ot of utah in a sum not less leas than half of the revenue of the territory of utah for tho the year 1881 or with such sureties as the probate judge of salt lake county determined or would approve or any bond with sureties or approved as required by law or that plaintiff has ever even fi filed ledwIth with the probate judge of eald said county his oath E of offida or official bond and the defendant denies that he has or makes no claim of right to said office except by virtue of said election in august ISSO 1880 but on the contrary he alleges that at eaid eald election he was duly elected to the office of auditor of public accounts and after said election he dul oui duly y qualified for bald said office and took an 0 oath th to support the constitution of tho the united states and the laws of said baid territory and faithfully dischar discharge gre the duties of baid eaid office and also gave an off omm official lelal bond to the territory of 0 I 1 utah conditioned for the faithful performance of the dudlas of said baid office in the amount required by law and with sueh euch sureties as the probate judge ot F bait balt ait laake laske county utah territory determined and approved which bond and oath of office were filed with said eaid probate judge and afterward on tho the day of november 1880 the governor of said territory Is issued acied and delivered to the defendant a commission in tho tha words and fig figures ures following to wit united states of america territory of utah to all who shall ece thess these present r ij z greetings know ye that whereas nephi NV clayton chayton was on the second day of AU august augush ush 1880 duly elected auditor of public accounts in and for t the lle lit 1 territory of shand Ut utah and ho havin having duly qualified besuch as euch buch as tippe appears in by y the proper evidence on file in the office of the secretary ot the territory Thero therefore fore I 1 eli ell H murray governor of said eaid territory do hereby commission him auditor of public accounts and authorize and empower him to discharge the duties or of said office according to law and to enjoy the rights and emalu emoluments in e ants thereunto legally appertaining for the term prescribed by law and until his successor ahr mchall ll li 11 be elected and qualified to office in testimony whereof 1 have here unto set my ray hand and caused the giedt seal saal of bald eald territory to be af fixed done at salt bait lake city this day of november A D 1880 and of the independence of theuil ted states the one hundred and fifth ELI H murray seal sevi sp 8 EAI evi ati ayi governor by tho the governor arthur artrur lj L til THOMAS OMAS seely of utah territory that after receiving said commission and on or about the 28 th d day SY of november 1880 the defendant entered into said eald offee office and upon the die discharge charge of the duties thereof and has not resigned but has ever since held and now holds holda said eaid office with and under claim of right and title thereto and as he la Is informed and believes his bis official term haus has not expired and the defendant denies that there ia 13 no plain speedy and adequate remedy in the tho ordinary course of law the defend defendant ant mut therefore prays judgment whether tho the court will take further cognizance of the pro ce edings herein and akes afes that hat the action be dismissed with mith costs coats and the defendant further answers herein and admi admitting bitting that on or about the day of septem ber 1882 tho the plain plaintiff received from the governor of utah an instrument purporting to ba be an nies that on that day or at any time the plaintiff was waa duly daly or in anyway appointed appoint cd to the office of auditor of public accounts of tho territory cry of utah and aua the defendant admits that en on tha the of september 1882 1682 the plaintiff received from tho the said governor e an instrument of tho the terms beet out in the tho affidavit ot of plaintiff nud lud the alternative native writ herein and therein called a commission but tho defendant denies that en on that day or at any anytime timo time he flo wab was commissioned auditor audit lot 0 Val paule blip accounts of bid sald said territory or that since the tho day last aforesaid afore suld or at any time he has been or la Is tho duly appointed or auditor of public accounts of obeaid baid eald territory or authorized or required to discharge tho duties ot of said office or entitled to tho custody of or any of the books accounts or other property of said territory belonging baio balc nging or pertaining to said office and the tle tie bierend rend ant on information and belief a alleges that the tho plaintiff never gave or had filed in the office of the probate bate judge of salt lake county utah a bond to the teril Teni tory cf utah conditioned for the f faithful performance of the tha dutley of said office ia in a sum not less than hait half the revenue of said eald territory for the year 1881 1831 or with such sureties as the probate jud judge e of baid said count county yde determined ter mined 0 or would approve or qualified for entering on said office or ever gave any bond with sureties approved by sald eaid judge or filed all an official oath with said probate judge and the defendant denies that he has or makes no claim of right to eaid eald office and the possession thereof except that ho he was elected to said offic ein oin august ISSO 1880 bulon buton but bul on tho the contrary the defendant alleges that prior to august 1880 ho was wais a male citizen of the united states over the ago e of twenty Y one years and for more moro in ore oro than ona one year had been a constant resident in the territory of utah and a as payer therein antt anil that after arter eaid eald election ho lie tooh took an oath rath to support the constitution of the united states and the tho laws of utah territory and faithfully discharge dIsc harga the duties of said office and aavo bonds to the people of the tho territory of utah as required by law conditioned for the faithful performance of the duties of eaid said ofilio ace in a sum not less than half tile the revenue of baid eaid territory for the year and with such su acs as ns were doter mined and approved by the probate judge of salt hait lake county dounty tou cou nty utah and filed tho sama eama and aiso also ha his oath oath ot of office with M ld probate judge and in all respects res poeta qu qualified as required by law to crit erit enter r upon n and discharge tho the duties of oe baid said office and thereafter the governor odthe of the terri torri tenry wry ury of utah lemed and deliver id ed to tho the defendant a commission in tho the words and figures following united states of america territory of utah to au all ubo who shau isoe see thess presents greeting know ye that where whereas wl nephi W clayton clay ton was on the second day of august AD 1830 duly elected auditor of public accounts in and for the territory of utah and he having duly qualified as such as appears by the proper evidence on file in the office of tho Secret secretary oary lary of the territory therefore 1 I ell H murray governor of bald said territory do hereby commission him auditor of public accounts and authorize and empower him to discharge dit charge the duties of said officio offee according to law and to enjoy the rights and emoluments thereunto legally appertaining for the term prescribed by law and until his successor suc cessor bo be elected and qualified to office in testimony hereof whereof I 1 have hereunto set sot my hand and caused the great seal of bad sad said territory to be affixed done at salt like laae city this twenty seventh day of november A D 1880 IM and of the tho independence of the united states the one ono hundred and fit fifth th SEAL beall ELI H MURRAY governor by the governor AnTii ARTHUR brt urt L THOMAS seey hesy secy of utah territory that after recel receiving ving E aid said commission and on or about the ath day of november ISSO 1880 aud and not in august 1680 the tho defend defendant aau aut entered into the said mid office and upon th the a discharge of the duties and has haa not resigned sald eald office and hold holds the same under claim of right thereto and the defendant alleges that the said office and the fr franchise anAlEe thereof is worth more than one ono thousand dollare doll arp and the halary thereof is 13 more than one thousand dollars per annum and the defendant den deale deals le there la Is not a pian plan speedy and adequate remedy in the ordinary course of law wherefore defendant prays judgment that ho he bo be hence dismissed with his costs or utan UTAH t county of salt lakee ES 1 eibl IV clayton Clay ton toa being duly sworn bays vass I 1 am ula via defendant in the above entitled ucal n my foregoing answer 1 i truo true of my own knowledge except ag to matter therein t stated on information and belief and as to those matters I 1 believe boileve it true subscribed arld and sworn to before mo me this day of 0 Oa tober 1882 distrct district coart third Jud judicial clai elal da dla dia IS brict county of salt lain terri tory of utah the people of the territory of utah ex rei rel GeorgeC GeorgeO dougla douglas plaintiff vs nephi nepal NV olay clay ton d defendant efen dant and now comes cornea the tho defendant Nephi VV clay ton and demurs to the the aff affidavit davit of the said george georga C douglas dauglas upon which the altern alternative stive writ will herein 13 base based and demurs to and also moves to quash eald said alternative writ on the following grounds I 1 the tha court has no to hear or determine tho the subject matter in controversy on proceedings for a writ of man mandate dite 2 proceedings for a writ cf of mandate aro not a lawful method of trying defendants defendant titio titie to the tho office in question neither the affidavit of rotator nor tho the alternative writ herein states facts sufficient to consi tug tut a cause CAUSO of action against b tho defendant for a writ of mandate or any judgment or relief before aaril proceeded ceded further in the case judge judae mcbride moved for the peremptory writ narl t of mandate to issue and attacked tho the practice tico of demurring to the alternative writ lie he claimed ou on the part cf of tile the that they had the right to open and close tl tho lucas lucaE cass casp dutan dufan defendants danN objected this being a nw polut point raised ia in the ca cae eye e tho court concluded to take it under advisement till 2 pm to which time the court adjo adjourned irnel 2 at this hour the cou court again met when ade ado jegu in reference to tho the point over which an nt taken gas was g iveli by toy chief J 3 c tle tie alco hunter cHunter he denied the of judge mcbride to disregard dc tic sp rawlins rawling cicco proceeds id ed with his argument he said eaid the two iwo cases in question involved the title to and the possession of the offices of auditor of public accounts their general contention ort would be that the affidavit and the alternative writs based upon the affidavit in these two caseb cases respective lydid not state facts sum buffi clent dent to entitle the party to any relief the parties seeking relief of this sort in a proceeding of this kind must show a clear specific right and must be without any specified legal remedy in the ordinary courte of law the had attempted to show their right hy by an appointment made by the governor of the territory which appointment appoint melt is alleged to have been given oa on or about the of september of tile the present year the power of the governor in respect to the making of appointments to office wa special and restricted he like an inferior court or a ourt of limited jurisdiction such must be the case in the present instance unless it could be shown thata thada eliat a vacancy has haa happened iuan luau in an omeo office in some particular manner the conditions making tho the office vacant must appear in the pleadings the plaintiffs plaint lub luf however had not only failed to show the existence of a vacancy in the pleading gsa gLa but they had affirmatively firmat ively shown the non noa exist ence of ghe the very contingency upon which the alleged authority of the governor arose they showed that the tle defendants respectively were duly elected to their offices at the regular augur augurt t election of 1880 1680 that they wc wre wie ie regularly inaugurated in obilee pursuant to that election that they have held said bald F and the insl Inal gafa gala thereof pursuant to said election and that they chimed the right to the possession ses seb ision of these offices by such appointment or election they showed no vacancy happening in any manner in thebo these office offices no resignation and no death of an incumbent they showed nothing as a matter of fact unless the court gount judicially know that a vacancy had happened under the conditions ha had named in I 1 n which case the governor might have the right to exercise his appointing power his first proposition there lore tore was that the auditor and sheriff elected in august 1880 1980 nen een pen titled to hold their respective offices until were elected ejected and quail qualified fled and he hir her dir RW raw nna una used lne the word successor in its proper and accurate sense lie he then proceeded to quota from the statutes ot of utah on this point in which it wab waa clearly provided that incumbents |