Show JUDGE E R K WILLIAMS pi the mandamus case of james N JK kimball TS franklin I richards demonstrates the illegality of the governor appointments on oil the ground of the edmunds mil i and tho the hoar amendment I mandamus is not the proper remedy to try the title to an a aljy ily a public oue one it can never be A used where the title to the office as inthis ih n thia case is in dispute it is oni ly where the tile acts facts are undisputed aud and the legal title of the relator is clear that mandamus inan damus can be used to compel the performance of some legal ministerial act and never to try conflicting cla claims nis to the office wells jurisdiction of courts section 18 michigan people vs detroit olt oregon 2207 warren vs rs myers 70 76 newyork new york people rs vs ferns ferris I moses on mandamus p high I I agh on oa extraordinary remedies medics Ile sec see 49 note also sec see W note and sete sees 53 and 55 65 if there be an adequate common taw law or an all eap exp espres m statutory remedy to try the title to an office manda mus cannot be resorted to nigh on extraordinary remedies sec see 16 29 wisconsin wisconsin 79 ra supervisors leigh va ya kins king co justices justices rs 31 munday 25 indiana L A 11 co COM v the state 20 26 indiana In diann fogle vs gregg gre g there is both an adequate com mon law remedy and an express statutory remedy by information in quo ivarra rdo compiled laws p sees 1543 1549 1349 the public prosecutor is the proper party to authorize an information in in quo war carranto on the citation of any one claiming an office ill high h on Extra extraordinary ordin ary remedies ctr r 91 the united un cited states district attorneys in each county arc are all pubic lie prosecutor the first for all the territory Ferri tory the latter for tive counties so notwithstanding the compiled laws authorize the attorney general L of the territory to file this information and congress subsequently repealed that office yet its duties Were dev ived upon the united states district attorney and the county attorneys and the right to quo irarra nto proceedings is a legal right secured to every claimant of an all office to try the title thereto beside sec see 1786 of the revised statutes of the united states especially provides thin this remedy when the title to an office is in ill dispute in i n the united states courts nor is mun mandamus damus authorized in such a case as this by our statute although office is therein mentioned yet as decided by the supreme court of california the second section is is a limitation on the first and the two taken together only authorize proceed edi inga I gs by mandamus when it would be the t ibe proper remedy by tho the common law ccuin laws p sec see 1670 high on estr item rem sec see 30 44 california kimballjr rr UW W aco CO ir I having laving shown that quo carranto war and not mandamus is ii tho the proper remedy to try the title to the effiec i let us sec see if the title to this office is in dispute the defendant lion ilon F D rich ards was elected at the august election 1880 as his own successor to the office of probate judge for fur this county and qualified in due time landi andi manner and has discharged its duties ever sauce and claims the right to discharge them until his successor Que cessor is is elected and qualified by the provisions of the territorial statute of feb 20 1874 corn com law laws p said officer is to be elected every two years and to hold liis his office for two years aud and until his successor or is elected this provision vision of the statute has never been Era een altered now what is the term thus designated by law Is it not until his successor vor is duly elected and qualified with the right in the people to elect a successor at the august A t election every two years and is it not well adjudicated in almost every state in the nand by the supreme court of the united states that this holdover hold over clause extends the term until his successor is so elected and qualified and that the holdover hold over period is as much a part of the term as the two years rears or other designated time ibave have not the courts repeatedly held that if hu successor is not elected at the required time the incumbent holds over by y virtue of the statute and is a jure ivre officer and not a mere de facio facto one have the supreme courts not eaid said that whilst an all incumbent is so holding over a at vacancy v a is is a legal aal yal be because c a use t the ie 11 incumbent is filling the office by virtue of law hence no vacancy can exist has not this been the line of adjudications from the atlantic to the pacific from the northern i lakes to the southern gulf seo see wallace supreme court united states ays US vs KAd Addison dison which involved th the question as to the title of of alie mayoralty odthe of alio city of georgetown in the district of columbia 25 ohio state state ta u how 37 cal people vs Tilton penn st coal re finnly by t the I ie utah statutes it is clear that yi judge richards term of office has not expired because no successor haa has as yet been elected or qualified in the hoar amendment to the civil i vit service service appropriation tion bill framed iu in the last days of the F session es sion of congress in july 1882 provides that the governor of utah shall have bave the power to fill such vacancies in office as may occur by reason of the not holding of odthe tho august election of 1882 Is there anything any ilg ambiguous about this language gul g if there be vacancies occasioned casio asto ned by the non holding of such election it is most clear that the governor can fill them but ho he cannot make a vacancy sec see mccrary McCra ryOn on american elections sec such offices as should have had i a successor elected elec ted ai at the august election 1882 and if here there to is no holdover hold over clause became then vacant but none with the holdover hold over clause it was not the intention of cither either branch of Con congress grass to declare offices vacant by the hoar amendment ns as most certainly appears a from the de bateson the adient amendment as well as from tho the want aj of any language in it manifesting such intention the legal rule is to construct the tile lali language guage found in a statute in its ordinary sense and meaning and to determine the effect by its language unless there is some ambiguity therein and then resort u is bad to other means here there is no ambiguity the language is is pla plain i in and clear and specific it simply i lap ly says what it means and means what it says but if resort bo be had to the debates it is equally clear and emphatic it is clear beyond a legal quibble clial alie hoar amendment neither made vacancies nor authorized the governor declare vacancies K IV the edmunds statute was ap proved on march 22 1882 about four months avious previous to the enactment of the hoar r amendment did it make any office but the election and registration offices vacant the first eight sections of this statute apply coall to all the territories district of columbia and all fill other places places over which the united states have ave exclusive jurisdiction and it is the ath section which is relic on as declaring vacancies s for f or it says no bigamist shall be entitled to vote ote or be eligible to or hold any office two constructions may be placed on oil tuii language one would make it retroactive and unconstitutional because ex post facto it would be ex post ost facio facto in ill depriving persons of rights acquired before th enactment of the statute and because it added additional penalties to the law in existence when the ense was it would also be unconstitutional in depriving persons of the their ir pro property erty without duo due process s of law all of v kiich is forbidden ud d n by b y tho th U US S constitution alike to congress s and the states but ahme constitutional objections would not so forcibly apply if the r statute be construed to have a prospective application in other words words if it be construed to apply to officers in future elections election tile then it would not be retroactive and it is a universal sal rule of construction in such cases to give the statute such a construction as would be consistent with the constitution and the validity of the stR statute tute and not nt such a one as would destroy it another rule is always to give statutes a prospective alu operation ration only unless the ian language ae of ortho alio statute positively requires that a retroactive operation be given because retroactive statutes have always been odious to the american people and is one of their grave the british government in in the declaration of independence pend pen dence enec fee wade vade I on retroactive ho laws sec 40 58 N Z people tt vs green v buethe but the edmunds statute aults on its face shows it to be only prospective for in the first section defining bigamy and polygamy it saya says any illy one who cohabits marries ac after what after the enactment of the statute and so far as pains and penalties incurred under it the forbidden act must lo 10 done since is ip approval the statute shows plainly ila its prospective operation to suppose it intended to declare vacancies is to attribute to congress the greatest absurdities for it would then declare vacancies ill ii all the territories and district of columbia if held by polygamists without trial and conviction without due process of df law which would bo be the infliction of unusual and cruel punishments without a hearing in in any criminal prosecution and aen then leave the offices vacant without providing for their being filled for remember that the hoar amendment did not pass for four months afterwards and then only applied to utah leaving the bacan cica cles ia in the territories and the dis brict of columbia for to to this day such absurdities should not bo be attributed to the national legislature VI who arc polygamists or biga mists within the tile contemplation of ol 01 these U S statutes the tile statute of july 1862 says whoever shall marry in any territory ac ae having a living cifu v i afe and being shall be termed a bigami stand punished ac there arc two essential elements in ill this te to make tho the crimo crime against the united states the marriage marriage must occur in ill a territory or oler other place over NY which cieli the united I states have ex elusive jurisdiction 2nd and it roust must have occurred a after the enactment to wit july 1862 previous to that enactment there was no statute of ofte to united states or this territory prohibiting ph plural iral marriage and lie that took more than one wife in this territory previous to july aw committed no against auy any law lav of the un united cited S states tates or this territory and was as not a bigamist tho the pro visions visions of of 1862 the edmunds statute is still I more specific for it says saye who shall hereafter marry ac so that when the two statutes arc are taken together or separately we have a clear statutory definition ill in what bigamy or polygamy as cis a crime against the united states con consists to wit the marriage ac in a territory and after the enactment it therefore a legal impossibility to commit bigamy or pol polygamy gain r against the united Stat ea esby tv ma marrying ming in a sta state t e ur r previous to july uly 1862 now ow in ill the affidavit of tills this relator he lias has stated no fact from which the court c can in determine that the defendant is a bigamist or a polygamist and in his answer the da feri fondant dant denies that ho lie is and can this court on oil A proceeding in in mandamus in vocation at cb chambers ambers and without a jury ascertain such dis disputed buted facts even were they aver averred in the relators rela tors affidavit I opine i not Is vi r but did tl the le eda edmunds rall ads bill intend that the crime of bigamy should be in inquired into in every con conceivable ceivalle cei vable shape pe that it might be sprung I in n a contest about the title to office without judicial conviction how can call it legally be said that a man ia is a bigamist until ho lie has been judicially convicted of the cu anse anse bigamy by the statute of 1862 and this edmunds r statute of 1882 is not a felony and is but a penal of fensch at most the deprivation of suffrage rage and of the rig right it to ho hold d office is by far a greater eater pe penalty ity than had ever before been provided cu and now shall it be annexed to such persons who have married plural div wives es ira territory since since july 1862 32 but who have been condoned by the united states status by its statute of limitation when it is legally impossible to try them and to inflict upon them the lesser imer penal penalties fles will any jurist contend the larger and ind newer penalties can be inflicted without trial aud and without process the truth is this effort to inflict tile heavier and more degrading penalties elial ties on persons who can never co be convicted in any judicial and criminal proceeding under the laws of the united states conflicts with the decisions of the supreme court of tho the united states in tho the test oath cases found in tho the ath wallaces N kral laces reports and violates that grand constitutional announcement of tho highest judicial tribunal in the nation and which may justly be re corded as a sacre sacred mat declaration ecla ration of rights to the american people the great absurdities an and violation of fundamental principles and constitutional rights grow butof out of the retroactive operation now being tried to force on this edmunds statute and which the U S supreme li court will straighten up whenever this statute comes within its sacred precincts the solemn conclusion therefore of abisa summing up is that there i is no vacancy by cither either the provisions of the hoar amendment or the operation odthe of the edmunda edmunds statute and that his excellency tho the governor had no authority to write the commission that the plaintiff claims under and that it is legally not worth the paper upon which it ia ii written |