Show I I I THE DECISION andge 11 it einerson considers mand guiti the proper Ren tedy the decision in the mandamus caso we of james N Kin kimball iball vs franklin DRichard DR ichards a was rendered in the First district court in this city by hon ilon P 11 emerson follow following ing is tho text of the decision report reported ed by james jain ei taylor ray or esq E sq in this mandamus caso case I gave such buell investigation as I have had time I looked over euch such authorities aa as I could reach both here and in ke city and will give a decision this in morning orning without very extensive reasons I have written no opinion upon the case I havo have had bad no I idea dea but what it would be appealed api caled T then ben would bo be the time to write an opinion As the members of the bar who practiced before me know it ia is very tory seldom that I write an opinion the first point raised aside from the tile point decided by the a argument which wb ich may not be mentioned here is tile demurrer and it is a point to which I havo have given perhaps as much attention as any and that is whether r thia this was the remedy or not whether this was wits tile proper remedy for these things of course you are all familiar with the statute upon relation to mandamus it may be issued by any court in this territory except justices to compel tho the performance of an an act which tho the law specially designs as a duty resulting from an office trust or station or to compel the admission of tho the party to the use and enjoyment of or a right or office to which lie is entitled and from which lie is unlawfully kept by buell tribunal bar or person and this writ shall be issued in all cases v here there is not an adequate remedy in alio 11 ordinary course of tho the law I do not know now not having given the question thought thou glit enough what force should be eiven to tho the latter clause clause of that section or compel the admission to the use of an office to which the party ia entitled and from which c h he h C ia is unlawfully kept by any board or corporation in my view it is not necessary to give ivo my construction upon the latter clause of said a id section although althou all it does seem to mo me that it would vary somewhat from the common law use and force of any law on mandamus that is it goes further while I may inay state that the general rulo rule is that ordinarily it is not aoto to bo be used to try the title to an office cobat but this is where there is some fact in dispute it can bo be used to settle a contested election though it cannot ho be used where there must bo be a trial but in tho tile case before me in the case submitted thero there is kotbin nothing to decide except a question fuestion of law all the court has to do is to construe the statute and tell I what tho law is and what the authorities are of course it was thought that it could not be used where tho the right is doubtful perhaps we cannot say that the law is doubtful because the law is safe it is certain that it simply rests rests upon the tile court to give expression to tho the law and to state what the law is and this is all there is to do in this mis case there is nothing set up in the tile caso case that requires tho the trial of any facts but all till depends upon the construction that is to be given to certain statutes the statute of the territory in in relation to holding li over and what if is known as tho the hoar amendment I dismiss these and give it as my opinion that in this case mandamus is the proper remedy I have looked over the demurrer carefully and the tile answer raises no issue e th there ere is no material issue raised in III u ti any way in lt the answer but it is not necessary for me to determine determine what force shall bo be given to the allegation in tile complaint that the tile person now holding tho the office is a polygamist at any ato rato the answer does not raise any issue issue upon that point the answer says that since 1862 he lie lias has never married another woman and is not a polygamist under the purview of any statutory eta law of tho territory the answer raises iss issue e upon the complain tand there is is no kasuo raised in the answer to any other allegation in tho tile complaint the relator in this caso case has set forth 14 lus i repeated efforts to file his bond amt aut oath of office his bond was drawn as in compliance with the statute and the oath of office was at ats cached and somo some five or six repeated vis visits its made to the residence of the county co anty treasurer with whom the bond was to 10 bo be filed he ile elates states that ho he could ilot find tho tile officer who was away from home that he made mado repeated inquiries angom among oilier other county officers and the same answer answer was given visit ho then left alio bond with the oath of binco with iho ille wife of the treasurer stating to her what it was and asking lier her to deliver it to him and she stated slated that it was her custom to deliver official papers to him and that she would deliver them ther n upon his return the allegation is that hatho lio returned upon the of september and nd that lie lias has returned no answer ill in relation to it and that tho bond and oath of office were still in his i far acho knew this amounts to a compliance with the statute and all that was necessary for him to do and the last day of his return was some days before the proceedings commenced I and tho the only answer of denial i is s that ho he did not return till the of course it ia ta not material upon tho the whole view of the case I have b ave dote determined rim ined to grant tho the erema korv writ for the remedy and demand lemand in delivery of euch such articles as aro are cje mentioned F in ili the petition of course now I havo have simply briefly and summarily given my views views without going into any argument after tho the announcement of tho the decision dec is ion defendant mad made application for an appeal and ana stay of f proceedings pro peed at two p in tho the g court rt meet to hear arguments arthur brown judges judge II 11 ic williams and judge harkness argued tho the case for the defendant and kimball Kiru ball heywood for complainant nant at the close elope of which the court granted the application and fixed bolds at it 2000 coet coit of suit 00 |