The weekly Arizona miner., 1868-12-12

thai he eyer otherwise qualified by oath of office
 or otherwise, and. finally, by his said answer
 again denies that he s exercising tbe ciiicc oi he-
 corder or using its functions in violation oi law,
 | but on the contrarytiereof that be Is so doing by
 | virtue of law. This answer of the Respondent, h
 | viewed pleading m Common Law, is radlcail. l defective both in form and substances presenting | 1 no triable issue averring facts effectively and | ] evasively, and also matters or law, without tbe l
 facts upon which the law arises, to bo determined
 by the Court, and not the pleader II viewed as
 m answer, unde. the Code, it Is equally defective
 l Without saving anything Of its lack Of form, it | 1 contains no specific denial of the material aUega- l
 tions of the complaint sought therein to ,'e con
 l troverted by general denial of matters oi law
 | and fact combined. According 10 the rule ot pleading prescribed by the Code, every material allegation of the complaint, not specifically met and controyerted by the answer, is Tor the pur-
 poses of the proceeding in which it occurs, au ad.
 mission of the truth of all auch matters. Howell Code D. 305, { 65) The answer, therefore, ad'
 mitting some allegations of the complaint, name ly The time of the election, the first Wednesday 1 of June, 1867, and specifically denying none, op. l crates, under the Code, as an admission of what Is alleged in the complaint. What then, does the
 complaint allege as unt ontradicted by the answerf
 It. in substance alleges that the Respondent holds
 and exercises the functions of the office Of Re-
 corder Of the County Of Pima, by virtue Of a pre-
 tended election at % general election held in that
 county on the first Wednesday In June, 1857,
 which election was SO held o that day, under
 color Of what purports to be An Act Of the Third
 Legislative Council of the Territory, convened on
 the Sd day of October, 1866 which purported to
 change the time of holding the general election of
 the Territory from the first Wednesday m Sep
 tember. in each year, as fixed in the Howell Code
 by the First Legislative Council, to the first We'd
 nesday in June. in each year that the members l, of both houses of said Legislative Council were
 elected from the several counties Of the Territory
 as they had been apportiOned to the said several
 l counties by ihc Governor of the Territory that the Governor. in making such apporticnment, , purpOrtcd to act under color of An Act Of the
 First Legislative Council, approved November 10, 1884 purporting to delegate to him such authori-
 ty that the Organic Law of the Territory specially
 authorized and empowered the Governor to pre- scribe the spportionment of members to the seve
 ral counties, and the time, place and manner or
 their election, for the First Legislative Council,
 but expressly providing that, thereafter, the time,
 place and manner of holding and conducting all
 elections by the people and the apportionment
 of the RepTcsenative- to the several counties. in
 the Council and House of Representatives, should
 be prescribed by law. This state of the case, as
 ! made by the complaint, the answer admits, first,
 afirmatvely, by expressly stating the election of o the Respondent to have been had on the day set up in the complaint, and second in falling speci- e fcnlly deny the other allegations therein. By Is operation Of law, therefore tbe same are all ad- e mitted, stated in the complaint. No proof was l. taken in the case, and none necessary, nor, -t indeed. any admissible, the whole case arising ss on the record, made by the peadings. From l, the case, made by the record, two material d questions present themselves for the consideration v of Ihe Court ls Was the election held at ths time specified in the record legally valid eleCtiong tO state the question more clearly, other queS le ton being presented by the record as to the val o. dy Of said election. except tO the time Of its a. holding. Was the Act of the Third Legislative n Council Of the year lsG6 that purported to change le the time of holding the general election Pom tho a. first "Wednesday in september to the first Wedues be day in June valid Legislative Acts In fine, had as it the force of law And second, including an6 le embracing the question just stated, had the IhirC be Legislative Council apDOriiOned elected and con h. vened in-the year lsG6, that purported to enac st that law any legislative power or had the egisa by tive power of the Territory apsed. Or, to stat )n this question more clearly, no other question ly is presented by the record to the legslativ ci- power of that Council but the apportiOnmcnt O he the same by The Governor, was this apportion e. mept of the Third Legislative Council by tb c Governor compliance with the Organic Act, aE' m- a competent, valid act under its provisions II ,r the disposition of these questions. raised by tn at record, will first consider the second for if tha Id is answered In the negative, the first Is thereb disposed of showing the legislative act in ques -t- ton invalid and imperative as law, from the wan D. of legislative power in the body that purportcd is- pass it. First, then, was the apporuonment 0 ts the Third Legislative Council, by the Governor, IT, compliance with the Organic Law, and compt fly tent, valid act under it's provisions? The dut er W ich the Court is here called upon 10 perform or always one of great deeacy, and the power whic is t brings into activity is only tO be exercised he cases entirely free from doubt The question her presented and which lies at the very threshold la the inquiry, is of the very grayest importanc Iw that has arisen, or ever can arise, touching th m present prospective condition and hopes oi th er- Territory. It Is, too, one in which ihe Coui fly deeply feels ts responsibility for the question id, of no less magnitude than whether any legslay m- power now does has, since the termination lw the Second Legislative Council, existed in th of Territory, and whether that power has not lapse Of and been lost by the omission or msmanagemeI ral of those having 1t in charge. Under our form To government a Territory, unlike sovereign Stat has no original inherent sovereignty or polite n- vitality. lt Is a creature Of the law, pol SC tical corporation created by Congress under Il md third paragraph of the fourth article Of the Co ', stitution of the United States giving 10 Congre the power to dispose of and make all needful ru the and regulations respecting the Territory or oh aid property belongingto the United States Althoue the In the organization of Territories their polite rd powers are divided, as in sovereign, constitution did States yet each of these powers, and al togethe o exist only, and exercised, not in virtue of an
 is constitutional rights political sovereignty cith' As in the Territory or the people over which the i've are exerted but solely in virtue of the Acts per, Congress creating them. From the very natui sed of Territorial Government, as of n corporation nd both the measure Of it's powers well ti ed, method of exercising them, are the mere creature
 Of of law, and in either case, the law is deegatO ed of power and not limitation of any origin rst power existing in the Territory or eorpOratio lint thus created. Any other view would hopeless nd confOund all ideas of order and good goyernmen der and all distinction between governments and Il pms instrumentality by which they work. In fine, his Territorial Government s, in its nature, pow yed and capacity, just like a eorporatiOn-s me o1 creature Of the law that created H. with just sul ed powers and capacity and no others, and to be c au. ercsed in the manner and to the extent, and n Act otherwise, pointed out by the law of it's ere ,id. ton. The implied powers of either limited va! those only that are necessary to carry out Il