Show JUDGE EMERSONS DECISION eull FULL eui FUI L TT TEST OF op TIM THE beuka IN THE OGDEN MANDAMUS CASE the following is the full text of the de decision clelon of judge emerson given on monday in the first district court in the mandamus case of J J N kimball va vs F D richards as it appe appears ars in the Q oden den herald and reported by james taylor esq in thia this mandamus case I 1 gave such buon investigation as I 1 have had time I 1 looke dovEr doven such authorities as I 1 could reach rench both here and in salt lake city and will give a dec decision sion slon s this morning 7 without very ve extensive reasons 1 I have written no opinion upon the case I 1 have had bad no idea but what it would be appealed then would be the time to write an opinion aalthe As the members of the bar who practice before me know it Is very seldom that I 1 write an opinion the first point raffled aside from the point decided by tha the argument which may not be mentioned h hrey nes res is the demurrer and it is a point to which I 1 have given perhaps as much attention as any auy and that is whether thia this wai the remedy or not whether this was the tho proper remedy for these things of course cours eyou you are all ali familiar with the statute upon relation to mandamus it may be i sued by any court in this territory except Justice Justic eg 3 to compel the performance for mance of an act which the law specially designs as a duty d u ty resulting rasul ung from an office trust or station or to compel tho admission of the party to the use uie and enjoyment of a right or office to which ho he 19 ls is 19 entitled and from which he is unlawfully kept by tribunal bar or person and this writ shall ahall be issued in all cases where there is not an adequate remedy in the ordinary course of the law I 1 do not know now not cot having given the question thought enough what force should be given to the latter clause of that section fon gon for or compel the to the use of an office to which the party is entitled and from which he is unlawfully kept or corporation in my view it Is not necessary to td give my construction upon the latter clause of said bec sec section ion lon although it does seem to me that it woula would vary SO somewhat from the common law use and force of any law on mandamus hat is it goes gos further while I 1 may state that the gene ral rule is that ordinarily it ia Is not to be used to try the title to an office but this la Is where there is la somo some acu fam ace in dispute dle die it can be used to settle a contested election elect ioa loa though it cannot be used where there must be c n trial but bat in n the case before me in the case submitted thero there is nothing to decide except a question of law all the court has to do is ti to construe the statute and tell what the law is and what the authorities are of course it was thought that it could not be used where the right is doubtful perhaps we cannot bay say that the law is doubtful because the law is safe it la Is certain that it simply rests upon the court to give expression to the law and to state what the law is and this Is all there is to do in this case cave there is nothing set up in the case that requires the trial of any facts but all depends upon the construction that is to be given to certain statutes the statute of the territory in relation to holding over and what la Is known as the tho hoar amendment I 1 dismiss these and give it as my opinion that in this case mandamus is the proper remedy I 1 have looked over the demurrer carefully and the answer raises no issue there is no material issue rah ral raked ed in any way in the answer but it la Is not necessary for me to determine what whai force chall to fco giyen glyen to apo theal rj 1 legation in the complaint that the person now holding tho the office is a polygamist at any rate the answer dees not raise any issue upon that point the answer says bays that since 1862 ho he has never married another woman and is not a polygamist lat under the purview of any statutory ata law of the territory the answer raises no issue upon the tho complaint compa int and there is no issue raised in the answer to any other allegation in the complaint the relator in this case has hasset basset set forth hs his repeated efforts to file his bondani bond and oath of office ris his bond was drawn aa as in compliance with the statute and the oath of office was at tache dand some bome five or six repeated visits made to the residence of the county treasurer with whom the bond was to be mod filed ho he states that he could not find the officer who was waa away from home homo that he made repeated inquiries among other county off omm meers officer and the same an awer was given upon the last visit he then left the bond with the oath of office with the wife of the treasurer stating to her what it wag was and asking her to deliver it to him and she stated that it was her custom to deliver official papers to him and that she would deliver them upon his return the allegation is that he returned on the of sep tenn tern ber and that he has returned no answer in relation to it and that the bond and oath of office were still in his the treasurer s possession as far as he knew fenew this amounts to a compliance with the statute and all that was necessary for him hira to do and the last day of his return was some days before the proceedings commenced and the only answer of denial is that he did not return until the of course coarse it is not material upon the whole view of the case casa I 1 have determined to grant the peremptory writ for the remedy il and mud demanding delivery of such ar articles as are mentioned in tha the petition of coarse now I 1 have simply briefly and summarily given my views without going into any ment after the tte immo announcement of the decision defendant made application for an appeal and stay of proceedings ce at two p in the court maetto hear arguments arthur brown judge R K wil liams nama and judge hark Harb neya nesa argued the case for the defendant and sud xina hisa ball au ax tor for complainant at the close elote of which the court granted tho the application and fixed the bonds bonda at tit 2000 2000 cor coat of suit |