| Show AN unconstitutional SEC TION 0 IN iii march last a mule belonging to nathan sears kicked a blooded mare which was with foal and was owned by charles gilmore causing her to lose her colt gilmore sued sears for damages and the case was on trial before judge zane yesterday the defendant filed a demurrer to the complaint based on the following section of what is commonly called pe he aes law chapter vill vili session laws of 1886 page 8 SEC 17 if the aggrieved person shall proceed by action against the owner or person in charge ot of trespass ing animals he shall get two dis interested persons of his precinct to appraise the damages and to give him a certificate thereof in writing under their bands which certificate shall accompany the complaint as a part apart thereof and under no circumstances shall he recover of the defendant in such action unless such appraisal and certificate shall be made within ten days after the time such tresi trespass pass was committed nor to a greater amount of damages dama than the amount named in such certificate 11 the determination determination of the amount of the damages done by a trespassing tres passing animal anima 1 is a judicial act hence the two appraisers provided for in this section on are constituted a court with power to so make a decree which the section says shall be final that is it provides that the judgment of the appraisers appraise is as to the amount of damage done shall be the limit of the amount which plaintiff may recover in the event of an action at law under the laws of congress applice abla to this territory the only courts that can have any existence within it are lu indices cices tices U S commissioners probate rebate district and the territorial B supreme supreme the legislative assembly of this territory has no author authority ity to vest judicial powers in adiv other officers or triou tribunals nals than abr these se this point is made clear in judge emersons somewhat noted decision respecting the water COMMISSi commissioners ODers provided for or by territorial statute for the purpose of determining title title to wlater in that decision it is explained that judicial f functions can only be ex excised by the courts provided for by congressional legislation the demurrer of the defense defence based on the above section was overruled judge zane holding that provision of our law to be unconstitutional for the reasons above indicated when the principles underlying the question are cons considered the soundness of the decision is apparent |
