Show THE MANDAMUS we herewith publish tile luent of judge it K in tho weber county probate judg ell ahll iella cac 46 delivered mia before the tile territorial 11 court f ore supreme L oil saturday feb 21 in the Su supreme jt court arp afi utah territory 71 J J J N kimball respondent F P D richards appellant an jhc thc motion judge richards for ail all appeal to tile court of the united states and the execution or ot ta the to judgment judge R K william williams in in opening in the he the motion fur for ehg tho a appellant question to be decided by th the approval of the bond tendered to t operate as a supersedeas the tile court had already decided that the pen penalty al wag wils sufficiently large and tl the le sureties amply good hence tile only lhing question n awas was to deter appellant was entitled d to a su supersedeas pers edeas if the value of the thing in dispute was over 10 1000 00 the right to appeal to the U S su sus preme Court an dhave a supersedeas aw was A section revised statutes of the united states tho the first question to be decided is AS to what was in controversy the second q question CS q tion is as to whether ahr it i t was x of money value and if so wat was ita its value over 1000 then how is it to bo be ascertained what was in controversy As early aa as 1798 1708 in wilson vs DAUie D ls dallas reports the U S supreme court decided that the court will not regard the verdict or judgment as ag the rule for ascertaining the value ortho matter in dispute be tween the parties to ascertain then the matter in dispute we must recur to the foundation of the original cumro versy to the thi matter in dispute when the action was instituted institute a and the court adjudged that the penalty of the bond brind being over the necessary amount although the judgment was under it gave jurisdiction aeflen and chero the value does not appear in file pleadings its bajue may be subsequently proved by the affidavit of the tile party or other competent evidence and ind thee se rules have been follo followed wedin Tin subsequent ull casia cases dalla dallas 20 10 willia williamson amson vs kencaid Kan caid U S vs Bri brig gUnion union ct als isow to recur to the pleading the thing in controversy or dispute will be ascertained on the day of october 1882 the cespon deaT Kimball before the judie A af atho F first int district kurmu court an affidavit cilli ell a com plaint in mandamus setting setting out that the appellant had been doted probate judge at the august election in 1880 and that his successor L should hould have been elected in august 1882 but that there was wm no such election held and that t on september 28 1882 the governor of utah had commissioned him kimball as such probate judge and that he lie had given ciron bond taken the oath of office but that he could not noff flu ind d treasurer and hadle f 14 be bond at hb office and on ORO b br erad 21 1882 had lim presented his com commission ini Qiea to judge richards and demanded that he lie deliver to him kimball the papers books etc appertaining to said office bat but t notwithstanding plaintiffs appoint a oi n t eilent he le rich richards n djs re fused to deliver all or any tiny of said books papers records or property to said plaintiff plain till an all still docs does so refuse and claims that he is en untilled tilled to retain the custody bof of the same until a successor to jinn hint is e elected acted by the people thus showing in ift his own affidi vi alt it or complaint that the very foundation for hh iiii claim to t lie books looks was whether lie or judge richards was the legal probate judge of bf weber county counti but t the he defendant a nt fifed diw a demurrer and answer at llie the same time and in his answer lie sets out that by virtue of an nn election to taid enid office in august 1880 the same governor of utah had commis commissioned ion him to fill eaid said office for the term prescribed by law lay and until successor shall be elected and fied dated sept ast 1st 1880 and alleges that his official term terin has not expired and said office lias not become vacant by reason of a failure to elected his successor on the first fira monday alonda oilaug august abet 1882 or otherwise and anti that by virtue of said office and in accordance with his ills duties dutie the defendant holds and retains the custody of the books records and all property pertaining thereto and not otherwise could a more direct and square issue be made as to the right to the tile office by what authority could any court take from front the legal iceal incumbent the papers and records pertaining to the office and give them joany to any one not legally tho the probable judge and could any tiny court cout take from such an all incumbent the papers books etc without first determining that the claimant wag was the leg legal I probate judge and anti bleil to athe the custody of the papers wit it not cogent ial for Kiin Nin liall iball to g blhut ly liblit mhd title ho lie cr e d itlie the right n glit tl hava ia ion urtha I etc el had hc he filed an in arli affidavit davit or conr com plaint lalit claiming tile thought right to have lave tho the custody without showing lin claim to tile office would any tiny court have mo failed to dinni diluia it 01 on his right to the custody of the papers depended folcey on his rightly right lu the ollice if lio lie had no right to the office it would be ft a lega and a it highhanded high handed usurpation ion in any court to take from the tile ato oil officers cc claiming the right ight to I hold the tile offices and custody of the book books papera ac and giving them till to one without right cr or claim of right not only the lie pleadings of both parties show that tho tile right to the i office was involved but hij bis own printed brief filed in this cae case and now v part of ali the records in this court written by himself with his name its a member of the firm of kimball Iley wood attached to it show shows that her ila claimed the light tight t to theoffice the office in ill this court I quote i from an page ge section V N fix n this case there is no question of fact to be determined the title of lies pon pondil d t as well as a that of appah lard t depends ona question oj law tow to W wit it the tito construction to be given to lection eight 80 of ah n a act t to amend section of the tile revised statutes of the united states state s commonly called the edmunda bill and the act of tho the united states congreso Con grei gresi empowering the governor to appoint officials to fill bacan vacancies cies common commonly ay called the hoar amendment the chief justice dissented from a majority odthe of alie court mainly because he lic did aid not believe there was any vacancy for tho governor to fill by ili liis commission to the i respondent esponde nt tho tile community therefore know that the right to this office was in in controversy and determined the court that originally decided knew etwas it was in depute and now to permit the tile res respondent ondene to change his ground ant and to deny that it was in depute dispute or has been decided in order to prevent an api appeal val to tile U I S supreme court would be it stupendous fraud recognized and sanction fd cd by the court beside rea respondent is is precluded by his own pleading and brief and conduct from setting up any such objection tile right to the office having been in depute and having been determined lie tile next inquiry is IV was as it of money value the file low and the governors Governor commission gave to judge Rie richards bards the right and emoluments thereunto legally appertaining not only does the law prescribe fees but allows the county bourt to attach salary thereto ever since the celebrated case of marberry Marb crry vs madison adison decided by the U S supreme court in ill 1803 adjudging that to withhold a commission mission from one entitled thereto was an illegal act and of a vested rested legal it ha lias been universally ver sally conceded in ill the am american states that an incumbent ch entitled titled to hold the office lias has a property in it since then there have been before the supreme court thice three cases case of public offices one as to the supreme judge of nebraska territory one as to the mayoralty of ago georgetown r town and ona one as asae assessor or of boise county count id ida a hoi 1101 aldno aad no suggestion in either dither that such was not the tile case W wallace a U S vs Add addien Ad dion ifon 19 will ggs board of corn coin ig vs gorman this last was not a certain salaried office but the compensation was uncertain depending on lie the number of days lays service service per revised laws of I jaho p sec tion 21 that the incumbent lias has a property in the office and its emoluments Is is now a t legally ascertained fact thenis then is it susceptible of valuation evaluation in in money bouey and this immediate ate and direct question came before the U S supreme I reme court in 1822 in the case of the tile columbian insurance company vs right et ct al ala Wheat ons report which was a pere peremptory nip mandamus to admit the defendants in error to the offices of birce directors of the insurance company the court held that it tion of the matter in controversy was of sufficient value and directed jones the appellants coun counsel cl to produce affidavits of value and ho he having failed to show by affidavits that the matter in controversy was of the value of one thousand dollars the writ of error was dismissed now what was in controversy it was the office of director in s said aid cmil kompany lany if lie could have shown that the office was worth ono one thousand dollars his writ would not havo have been dismissed this case does decide that the value of the office could be shown in the case of sparrow vs strong wallace the supreme court of the united stales states allowed affidavits to show the value of a mere possessory right to a mining claim in in nevada before the land had been brought into market and befumo cither either party had title thereto because it was a species of property recognized by minera miners it is true tho the court said saia it could not say that the tile appellant had not a mexican Alex ican claim but the court did not put its decision ou on that but on oil the value of the tile possessory right under miners custom customs the only difference between salaried offices and fee offices ia is in the proof of value fee offices are tire aa as much property as salaried ollices and aird as ranch much entitled to alic protection of alie law and the tile courts where a salary is fixed by law lawthan that is decisive decia ivo ot of itself of the value if no salary be fixed then the fees and emoluments become a matter of proof but tho the one has bas a money as its muk ni the other but baynot ma iro be worth as 13 much lit ahti ilce ice the proof show its value or bof A tp it in over the requisite sum it is us of p T as asland land or tiny ny oilier other properly property A tract of laud situated in it populous country or near a large city inny may be much inure inure valuable than it tract of greater fertility and more area situated situa kd in a n sparsely settled region and tho Sti supreme prem hirt might inight have jui jul i of the one on oil nu ae aou chint it t of i its ts proven vei x va value e i if f i in it d dispute ia but not of the other so of offices the office ia is much more valuable in some soule places than others iii in all such cases caes the value depp depends lIds on oil the proof to say ay that a fl feo eo office flochos has nu no money value is to ignore the every every day observation of the cou t ts E every very court knows that tho tile offices ot of clerk sheriff have a large money value but what that value i s when in dispute must mus t liko like all other pro property perky in dispute appear either in the pleadings ale edings or in tile proof in I it chii ca e it appears both in ill tho tile record and suid in ill the only proof in ill the tile case the affidavit of judge richards and both ellow its value to exceed 1000 and about this there ia is no conflicting connic tins evidence irence there is no escape cap froni front the tile legal conclusion that this appellant 13 entitled to have the ten cent bond approved to act as a |