The new North-west. [volume] (Deer Lodge, Mont.) 1869-1897, 1870-09-09
TERRITORIAL APPOINTMENTS.

Messrs. Rodgers and Barley were incum.
bcnts, will bs remembered. Also, that
h,cir incunlc:ts refused to surrender tho
Offices; that u test case for. both was made
IN the Authorship; that the District Court,
Judge Warren presiding, decided,
lot. That Rodgers was not legal iucum.
bent, and,
81. That Fisk was entitled to tho Office.
The case Was appealed to tho Su.
prone Court. 1t came up At the recent
term, and IN opinion was agreed upon by
q majority Of the Court. The judgment Of
Ahe lower Court hal been made under the
following Section OF tho Civil Practice Act:
See 3ia in every such case Judgment msy be rem
Aered upon the right II DEFENDANT and also upon the
81
The judgment of the lower Court was,
that Rodgers was not entitled to the Office;
that Fisk was. When tho Supreme Court
had agreed. Judge Warren called the dock.
Ct aad catered The following memoranda on
dc margin:
The portion tof the judgment Of the court below]
relating 70 right Of defendant t'odcc"I to occupancy
That portion relating to rciators tFisksl enjoyment
nx office reversed tEaewlss and Symes copcairiUg:
Warren desertiDgJ
This 10 not tho opinion-mercly memo
sanda On the docket. Tho concurring
Judges write the opinion. Upon. the opin.
ion being furnished to the Clerk Of the
Court, 1t is his duty. unless otherwise or
dcrcd by the Court, to issue writ of ouster,
in Statutory language, "exoluding from
Office" Ithc incumbent, Rodgers. Messrs.
Barclay and Frary having agreed tn abide
the decision on tho Authorship; Mr. Bar.
clay will also be excluded ~ 1 rcasurcr.
The result under the decision is: Rodser,
and Barclay will be excluded from the
Offices; Fisk and Frsry ore not entitled to
the Offices, and Montana will have no Au.
ditor or Treasurer. The Court holds that
the appointment 70 these Offices must he
4 mutual action of the Executive and
Council; and that tho authority vested in the
Governor does not empower him to nomi.
nate persons who may hold tho Offices until
confirmed by the Council; tha: tho specific
authority for such exercise Of power by the
President. 10 . portion of tho Constitution,
but such authority to the Governor Of Mon.
sapa 10 not embodic4 in tho Organic Act.
Il 10 therefore held neccssarJ, to get the
Governor and Council together to dll the
Offices. How will Il 10 donci An act pa
sed last winter authorizes the Governor. I'm.
DER certain circumstances, 10 convene the
Council 70 6ll these Offices. It 10 said by
sosas that the authorization does not cover
this case; BY others, that It does. The Exc
eutive having no legal adviser designated
By law, he has 70 exercise his own disere-
lion between permitting the Offices TO 70.
main vacant, calling the Council together,
~ e>.ve"fug N extra session Of the Legts.
jaturs. The necessity for either Of these
may DO averted for time. by the with.
holding of tho opinion of the Court, or by
ordering the Clerk 10 withhold the writ Of
essstr. With revenues to collect and dis
bursc, and interest falling duo on Montana
bonds In New York, tho business and d.
nancial credit Of the Territory would he
seriously impaired, and much evil result to
II from vacancy Of the Offices. It 10 q seri
Gus muddle. and 10 to b regretted. The
Court, unquestionably, regards II without
political bias, % the opinion Of the several
Judges 70 the exact revcrse OF what their
political sympathics would bc. We are
told II 10 improbable that Governor Potts
will call On extra session, or assume the
power 10 call together The Council. In
that case It 10 QUESTION between vacancy
in The Offices, and The continuance of Rod.
gers and Barclay BY Withholding the writ
excluding ihcm from their Offices. Wheth.
sr Che latter can be done for any consider.
able length Of time, We do not know.