Show I V ti junction oct DEMURRER SUSTAINED the same opuses onuses ho lib Serc rely yesterday at four alie majority decision of judge hunter and fudge emerson in the mandamus case was read in open court at salt like city ly the former gentleman judge boreman dissenting the opinion by elating the object of the mandalu man damu and the points of the demurrer of respondent attern cye it has been heretofore held by t e allm territory in the vs the and 2nd district cout this court original jurisdiction to issue mandamus except to enable it to exercise its ap ft jurisdiction and the court in that case cites sections and 1869 of the revised statutes of the united states and the ad section of an act entitled an act in relation to courts and judicial officers in the territory of law flie supreme court in pasing upon those in the decision cited says regarding alie acts of congress as tho law of the territory having controlling power similar i con of any particular state over their respective legislature and judicial department forced to the conclusion that in so far as section of our practice act which pio videe that the writ of mandamus may be isred by any court of abl territory except a justice of the peace in it conflict wild the acts of above to it 11 inoperative and void the decision of the court is based af on the theory that the ach of congress in to the courts n erred to are paramount to all ter rii orial legislation in this theory we now concur and if there is any congressional enactment which has the effect of making inoperative and void section of the practice act then of course the act is void eo far as it confers upon this court power to issue mandamus in the exercise of its jurisdiction it is 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 the effect of limiting the jurisdiction of this court but only to that certain extent it confers upon the district court exclusive original jurisdiction in all suite or proceedings in chancery and in all actions at law in chich the sum or value of tho thing in controversy shall be three hundred dollars or upwards to determine therefore whether the congressional enactment destroys the legislative enactment are must look into the character of the pro beeding wherein the rule is sought to be applied clearly if the caso is 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 thin be three hundred dollars or upwards then the exclusive original jurisdiction over it ia in the district court but if it is nol a suit or proceeding in chancery or if it is pot a suit at lair wherein the earn or value of the thing in controversy is three hundred dollars or upwards then be district court does not by virtue of the third lection obtain the exclusive original jurisdiction jiris diction the poland bill confers upon justices of the peace jurisdiction in all cases where the debt or sum claimed shall be less than three hundred dollars thus giving to justices courts concurrent jurisdiction tha district courts in such cases where the amount in is less than three hun dred dollars of the practice net pro i tides that the writ of mandamus may be issued by any court in this territory except a justice to any inferior tribunal corporation board or person to compel the performance of an act which the law specifically enjoin as a duty an office trust or station under this provision the relator has applied to ling court for the writ and the demurrer interposed to his complaint and affidavit raises question and ia resolving that quesa tion it becomes our duty to apply the rule of construction heretofore referred a the ie not a suit or proceeding in chancery and therefore the district court has not exclusive original jurisdiction over it nor is the amount involved in it atoo or upwards nor is it less than it has no value whatever and has no element calling for the chancery powers of the court but it of that class of cases in which the practice act confers upon this court under the broad term any court ju to itsuo writs of mandamus to my mind there ia a wide difference n the office of the two writs vu and certiorari the former is termed in our statute a writ of mandate and the latter is termed a writ of review clearly in the ono case looking to ilia enforcement of some act or duly refused to be done ly an officer in the execution of ft trust which by law he required reou ired to do or perform in the other looking to certain proceedings had by u inferior tribunal wherein there is alleged error or other informality in the proceeding which the superior court issues the writ desires to review to ascertain exists if or not error or informality in tho case of tho writ of ceraio ran I havo doubt of the boiver of th e court to issue it for the pura poses prescribed by the statute sia tute in the case of ahe writ of man damuc I hou it ran only be isred iti alio particular provided provi deJ by the statute and that the statute limits ho power to issue it to eccli cases wherein it is sought to compel tho performance of any act which the law specially enjoins as a duty resulting from an office trust or his is not of tho kind here spoken of the officer against whom this writ ie directed m performed his duly we am not called upon to command him to do any duly no has failed or refused to perform but we aro biked to compel him to undo on net which the law compelled him to do and be has done this we cannot do the validity of tho law which ina poad the duty upon the respondent to enter he names of the ferons named in the register cannot be into question in a proceeding of this kind we find that is a on our statute hooks in reference tu registration corn pelting tho respondent lofio what wo now to compel him to undo we cannot for the of thi proceeding inquire into its validity having satis liftig that the duty re anrod in rod by alie statute fo bo perform fd liaa performed ie lt fur o do atie ollice the w aha do not within the u of authority be yond that lie cannot and thia court could not to exceed the functions of his chic in this case it was the daty of alie respondent to enter the names upon the register and chairing so entered them he could not afterward legally erase them and if be could not then this court cannot through the agency ol 01 the writ of mandamus compel him to section of the act of feb 22 provides that it shall be the duty of the assessor of each county in person or by deputy at the time of milking the annual assessment for tuxes in each year beginning in to take up the transcript of the iv at prec coding registration list and to the revision of the same and for this purpose ho shall visit every dwelling house in each precinct and mike careful inquiry if anny person whose name is on his list has died or removed from the precinct or is disqualified a a voter of 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 imposed upon the registration officers the duty of whiting every dwelling house in bacu precinct and of making o inquiry as to any or all persona entitled to vote and to ascertain upon what ground such person claims to bo a voter and shall require each person entitled to vote anil desiring to be registered to take and subscribe an oarb in form or substance a therein prescribed section provides that it shall bo the duty of edich in person or by deputy during lie coin the cirit monday in june ol 01 each year at his office to enter on bin lit the of any voter eliut may have been omitted oi such voter appearing and complying with the provision of the first of this net required for voter for regis ratios purposed pur by four he is required the completion of this list to out a list in alphabetical order for each precinct aid to deliver the aine on or bebie july first IB cich year with all iho to the bleik of the counte court having formel the thus prescribed the functions of the assessor cease and he has no further duly to perform in regard to that registration li the beginning of the year having tor that year pursued the came cours cheha no further duty to perform with the registration lut for 1880 until the beginning of the year 1831 and the list for 1880 is the one from which it ie noir sought to hare the asure made this act of feby 22 1878 provides how the name of any person in said registration list may be stricken and by whom it hall be done sec the clerk of the county court shall file and carefully pre serve all aid affidavits and registry lista and shall make a copy of each precinct Regis liy list and cause the same to be posted up at least 15 days before any election at or near the place of election and shall make and transmit another copy to the judges of election sec the the county court shall cause to b printed or written a notice which ahall designate the offices to bo filled and stating that the election will commence at designating the place for holding the polls one hour alter sunrise and continue until unset on the day of 18 naming the day of election rated at A D 18 clerk of county court A copy of which shall be polled apat least 15 days before the election in three public places in said precinct best calculated to give kotce to all voters it shall also be the duty of the clerk of the county court to notice on potted that alie senior justices of the peace for said precinct will hear objections to the right to vote of any registered until sunset of the filth la proceeding the day of elec tion 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 the objection will bo beard the person making the objection cebalt berve nr bauo to bo served said notice upon the person objected to and shall aleo mke returns of such service to the justice before eliom the objection shull be heard upon the hearing of the case if eaid justice shall tanil that the person objected to is not a qualified voter he hall three laje of he election trum rait a certified list of tle amis of all euch ifield ferons pe rons to the judges of election and said judges shall ulrike names broin the registry list before the opening of the poll granting that the of thie writ ie within jurisdictional the era of thie court it e the law that it cant be directed to an officer to corn pel him to do a mere ministerial erial act which tho relator hae a right to bare done by him and as to which the officer has no discretion but it mutt be to compel him to do mere minie aerial act and thi act must be one which by he is required to perform and which he hae refused to do chief justice taney in the case of the suit of vs wall hae given a clear definition of a ministerial duty lie saye A ministerial duty the performance of which may in proper casee be required one in which nothing ie left to discretion it is a dimple definite duty arising under circum atances admitted or proved to exist and imposed by laar arc tho duties required of abo assessor in relation to registering persona nd preparing the lists mere ministerial erial duties it they are and he hue or neglected to perform them he undoubtedly be compelled by mandamus to perform them Follow ioe the dafin lation given to a ministerial erial duty a quoted these acte do not fall within it to bo ministerial nothing i left to the diacre of the asee eeor in the at bar one of the imposed upon the assessor i to upon what claim to be voters and ho i furthermore required to make careful inquiry if any person wl oso dinio is on the list died or removed from ibe precinct y w disqualified A a voter these are ell which require investigation research dd opinion discretion and consideration he mint form a judgment and act upon that judgment and it incumbent upon hian te discretion in arriving arri vinK t ho bs the discretion di upon abe jud mant formed by leini fron the niu iric he i required to make to erase from abo list of the preceding year any that daay be thereon all these act are not therefore mere dutie but are duties as to which alio has a discretion and are therefore not lucli duties lu pan bo campt llod to do through the of tho writ of I ii hy counsel for abe rato abut tho tb power by luandA umi fryy ff to compel to perform an net not within the scope of hie refusal to do the act work an injury thie court cannot impose duty on an officer which is not within the power imposed on hiro by law A mandamus will not be granted ta any person to ej cercie a jurisdiction which that person is not most clearly and certainly appointed to and bound by law to exercise for the cygirt will not grant euch writ except it clearly that there is a power in the person against v n the mandamus is prayed this opinion on alie qu oli n of the r afflit of ibis court to iesue llie writ his bonor judge concurs with judge lun ter hough upon other grounds as would appear from his opinion on file fudge emerson coee not agree with the majority of the court in this and hence dissents as to that br anili of the opinion judge bore lucente from the majority of alie curt in its opinion refuting the writ lor llie reasons elated in his opinion on file hunter aej emerson concur iii rif the writ on the grounds stated in the majority on the d emu is sustained |