The weekly Arizona miner., 1869-01-16
Chr >> @iner.
Territory of Arizona, at the Relation of the Attorney-GeneraL us Oscar Buokalew,
 Recorder of the County of Pima.
h ts. Distriof Court of tAs Frs. JdieiaI Di,trrt
Opinion of the Court, by Judsr Baosas

This Is a proceeding in the nature Of Quo Wayraaso. against the Respondent Oscar Backa. lew, as Recorder of the County of Pima Like proceedings Of this nature at Common Law, its edcct and operation s Co try the legal rght ut the Respondent to the office in question. Tbe regu. lations Of the Code touching this remedy affect only the practice, the mode of proceeding gives the complaint in the nature of an information. and the answer instead og the lnlcrnaliea aad subsequent pleading. as at Common Law, leaving the law of the case 10 be settled by The rules a Co right as before the change Of remedy. Tue only material change, therefore, affected by the Code Is simply aslto the remedy. The modeof pro- ces5.;iS giving ;as complaint, which is iu the ua- ture of an information. but differing from that n setting out the whole case uf the Relator, to be met by the answer Of the Respondent in the na- ture of plea, admitting, denying or avoiding ihe matter SO set out in the complaint, instead oi, as under the practice at Common Law, making the full case by the replication and rejoinder. The issue is now made by the complaint and the au- swer, the force and effect of which are 70 be set
 tied and determined hy ,hc rules prescribed by the Code. The case was brought on to hearing On the complaint and answer, without any testimony on either side The case, therefore, for the dcci- sion Of the Court, arises upon Inc record and the law and facts therein exhibited by the pleadingz- The information sets forth that. by the Organic Act of the Territory, the First Legislative Assem- hiy was. on a census to he taken ty Inc Governor. to be apportioned by him, and to be elected. at such time and place and ln such manner, as should be by him prescribed, bus that, thereafter, the time, place and manner of holding and conduct ing all elections by the people as well as thc ap
 portioumeut of the Representatives in the Begis- iAture, among the several counties and districts, shc.ld be prescribed! ky ieH. The complaint fEs- ther sets forth tha the First Legislative Assembly of the Territory, by An Act, approved November 10, 1864, purported 10 delegate 70 the Governor the power te apportiOn the members of The Legis
 lAture among the several counties, which, ty thc Organic Law aforesaid, was, aller the First Legis- lature, to be prescribed by law; that said leg.sla
 tive sst .S !n direct violation Of sssa Organic Ls~
 of the Territory, and, therefore, void The com plant further sets forth and ayers that the Cover
 nor. under color and bY virtue Of the authority so purported 70 be delegated Co him. aforesaid, by the said pretended Act of the 10th of Noyem- Der, 1884 n2d in violation Of the Organic Law aforesaid, did, by his proclamation Of the 9th of July, 1866, purport 10 make an appOrtionmens of the members Of the Legislature among The several counties of the Territory, as follows (yizl: To Pima county, members Of the Council and members of the House; to Yuma county, mem Der of the Council and members of the House 1, to Mohave counts, member Of the Council and l member Of the House; 70 Pah-Ute county, member of the Council and 1 member ot the House, and, 10 favapai county, members of the Council and members os the House. The said complaint further sets forth and ayers that the said several countses Of the Territory iD accord ance wiih the aPpoFiiopmeui above set forth, did elect the members of tue Legislative Assembly Of the Territory, making ard composing what Is called and designated the " Third Legislative As- sembiy of the Territory" which said Legislative Assembly was convened 0u the Sd day Of October, iroo, that among the Acts parpof;ing to be passed by said Legislative Assembly was An Act amend sEory Of Chapter z4 Of the Howell Code, entitled, "0f General ElectOns,n changing the time Of holding sad general elections from the first Wed resdzy tn September in each year, Co the first Wednesday in June ia each year. The complaint further forth and ayers that the said Respond ent, Oscar Buckalew, holds his office of Recorder Of the County of Pns, and exercises the functions thereof, under ths color Sf and by virtue of his pretended election to said ofiee, at an alleged election held on the first Wednesday Of June, lsG7
 that said general election, held said first We'd nesday of June, ls67 was without warrant or au thorty of law, and in violation Of She Organic Act of the Territory, and, therefore, null and void
 The information then prays Judgment of removal against the said Respondent, ss exercising the functions of Recorder without authority of law.
 The Respondent hy his answer 10 the complain. and its ayermeuts, above set forth sets up that c. H. Oary, who prosecuted in behalf of the Ter rtory, Is no. legally Attorney Genera. District Attorney for the County of Pima, bnt that he il!e gally holds and exercises the functions Of said of Ace; all of which is set up in the most general terms. Thls part Of the answer, on motion of the Relator. was stricken out, as impertinent and frivolous, and raising no issue of law fact that could be tried in this eaee. The residue of the Respondents answer denies, In the most general terms, that he holds or exercises the office of Re corder Illegally, and In like general terms ayers that he holds ard exercises tbe functions of said office by virtue of the laws of the Territory but without setting out how, ayers that he elcciet at general election held on the first Wednesday of June 1h67 In accQydanee with the proclamation of the Governor, dated al Prescott, May 4, 1867
 that On the first day of July, 1867. he gave bond As requIrd by law, without setting out how, or that he ever otherwise qualified by oath of office or otherwise, and, finally, by his said answer again denies that he Is exercising the office Of Re eorder, using its functions, in violation of aw but on the contrary whereof that be Is so doingb virtue Of law This answer Of the Respondent | viewed blending at Common Law ss radically defective both in form and substance; presenting no trable issue, ayerring facts defectlyeiy ant evasiyeiy, and also matters of law, without tb' facts upon which the law arises to be determined by the Court, and not the pleader. IT viewed n answer, under the Code, it is equally defective Without saying anything of its iack of form, | contains specific denial of The material allega tions of the complaint sought therein 10 be con troyerted by a general denial of matters of lav and fact combined. According to tine rule O pleading prescribed by the Code, every maiera allegation of the complaint, not specifically me and eontroyerted by the answer, is, for the pur poses of the proceeding in which it occurs, aD ad mission of the truth Of all such matters. ilowel Code, p. S05, { 65) The answer, therefore, ad mitting some allegations of the complaint, nIme ly; The time of the election, the first Wcdnesda
 of June, 1867, and specifically denying none, op crates, under the Code, as an admission of Wha is alleged in the complaint, What then, does th complaint allege as uncontradicied by the answer
 lt, in substance, alleges that the Respondent hold and exercises the functions of the office of Rs eorder of the County Of Pima, by virtue of prs tended election at general election held in Cha county on the first Wednesday In June, ls6i which election was held on that day, undo color of what purports to be An Act Of the Thir
 Legislative Council of the Territory convened O.
 the Sd day of October 1866, which purported [ change the time of holding the general election the Territory from the first Wednesday ln SeI tember, To each year, as fixed in the Howell Cod by the First Legislative Council to the fret Wet neadaY in Inne. In each Naar. ihaI lhe LneInhel