, 1865-05-05

together with the Er'cutige records Of the Terri
tory and nearly az the papers belonging to th
Capital Of the Texritoyy By virtue of his Office
the Secretary of S5e Territory is the proper Gus
todian ofthese laws and papers. He has gone,
&c.
The Italics are mine. The Leland Opinion
also introduces the following clause 9lI
oaLet Judgment be ,entered for the plaintiffs
in accordance with petition"
Nothing of the kind occurs in the opinion 0
=, the Court. If there did, it would be ncoDsisten
and contradictory il itself But further com
ment is useless. and hope shall not again fee
the necessity OF referring to this matter through
the press ButNif ofnion-makers for oui
Courts, assuming pso tacto to dIetate ana gov
ern, are permit to go on upcheckea' VIVA
may they not as.--.4to 'do2 ~ T. NJ REED'
! The following is the opinion, as delivered by
che Court;
TIE PEOPLE Us, CALEB Lyon AND OTHERS.
This WAS an action commenced to restrain
Caleb Lyon, Governor OF Idaho Territory, and
Silas D. Cochran letting Secretary and any
person having in charge tie Archives, Seal and
original copies of the Laws o. Idaho Territory
from removing them to Boise City. u comes up
to this Court for perpetual Injunction. ne ac,
tion was commenced in the District Court, a'u
the injunction was issued from the Probate
Court. As to the facts shown before the Hon.
Probate Judge, cannot say, as l never have
seen them, and will only say here that when GER
tain facts set out in petition to the Probate
Court, the Judge of that Court is bound to act
in accordance with the facts. To issue an in
junction ona proper showing was within his
puryiew and futher it is always presumed, in
favor, that each handeyery officer acted withinlhis
proper sphere of action, and ! win only say now
that his action is not before me to review; that
the question is now before me on its merits and
the side question as to the powers and duties of
the Probate Court on matters treated of in the
Organic Act and he that runs can read and un-
derstand il. The petition and complaint in this
case sets forth that on the I'd Monday in Novem-
Der, certain parties not at Lewiston and pro-
ceeded to organize the House of Representa-
tives contrary to law. The complaint in itself
is nothing more nor less than the history of the
organization Of. this Territory to the present
time. In reviewing it we see an anomaly pre-
sented such as ] in my limited experience have
never met with before. 1t is set out that certain
parties were elected (under the provisions of the
organic act,) and met here at the Capitol on the
7th day of December, 1853 under the Proclama-
ton of the Governor of this Territory; that on
that day they were properly qualified as Legisla-
tors; that by virtue of the Organic Law of this
Territory their term Of service should continue
one year; that afterwards on the I'd Monday in
Novembe 1894 other parties met contrary to
law and declared themselves as those having the
proper qualifications as Legislators. The whole
question, then, that presents itself is, were those
parties who assembled here in the Low
er House the persons daily qualified at that time
to sit and enact laws2 The Courts satisfied that
under the provisions of the Organic Act, and
Sec. of An act to create Offices in the Territo-
ry of Idaho that those persons who assembled
H.l, l. s,fT al
persons properly entitled to their positions as
Legislators, How long did they hold their Of
fee? One year When did their term Of SER
vice commence On the 7th day Of Qecember,
1863 Holding as they did, (under the provi-
sions of the Organic Act, and the esupererogatory
act of The Legslature1 their term Of Service
would have expired on the 7th day of December,
1864. Who could have met prior to December
7th. l8642 None others than those who were
qualified on the 7tn of December 1863 Did the
meeting of this body aud the action of His Excel
lency Governor Lyon, make this a legally con-
stituted assembly, Governor Lyon had no 9TH
er or greater powers than those given by the Or
ganic Act, and cannot see how, by virtue of
his position as Governor, he could invest them
with one shadow more Of authority than they
could have been invested with by any other per-
son. Again. it is claimed that the Court will
not go behind the official act of a properly con-
l.
for the purposes of this Court that law duly
authenticated by the Secretary Of this Territory,
by virtue of his certificate and under the seal Of
the Territory is law de- factO and the Court will
not 60 behindhs official act, but take thesame as
granted This the Court would gladly do, but
the pleadings in this case are such that the act
is itself null and void, never was a law, hence;
that certificate from him proves nothing more
nor less than that it was simply a copy of pa
per on file in his Office. The Secretary does not
say what the law is. He certi6es to the correct
ness of those acts on file in his Office but as to
the effect of those acts judicially, he has nor
can have, nothing to do with them. he was a
ministerial officer entirely. Again, as to the
How was it done BY virtue Of physical force;
not by an order of this Court or an inferior
court but simply that might was right. The of
fcer on whom these papers were served has dis
obeyed them. r
"He that would rend the oak dreams not of the
rebound"
He has taken the Laws with him, and there is
still remaing here, some of the property belong
ing to him, by virtue of his Office. This Court
has NO power over him now, he has gone and as
the Secretary of the Territory is entitled 10 them
He can go. He can exercise the functions ofhis
efice, where he in his judgement sees fit; but the
validity of those acts will still remain as it ever
has been the province Of she courts to decide
The Capitol ofthis Territory is at Lewiston. The
Special Marshal will deliver the balance of the
property to any person whom he is satisfied is
authorized to receive it by the Secretary of this
Territory An Act that by law must be done at
the Capitol, must be done at the Capitol de jure
and not de faeto.
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