The new North-west. [volume] (Deer Lodge, Mont.) 1869-1897, 1870-11-04
The Territorial Awtitosslttp a,sll
the Opisi0,s Of the Supreme
Court.

Court
The opinion of the Supreme Court in the
case Of the Territory upon tho relation Of
James l.. Fisk ~. WIN. II. Rodgers, has
beer rendered and published. Tho judg.
nent of the court vas announced ct the last
August term, but the opinion was not made
public unit! within the past few days. This Is
the case involving the right u tn. Office Ut
Auditor. The principles of law laid down
BY the Court apply not only to the Auditor.
ahip, but to tho Office Of TREASURER and 10
oil Territorial Offices not otherwise provided
for In the organic act.
Although many of our readers may lie
familiar with the facts Of the case. It viii
he we'll, In this connection, to recapitulate
them briefly: Redgsrs wss elected Auditor
Ia November 1867, ~ the Legislature In
joint convention, and commissioned by the
Governor, In pursuance Of On act Ut the
Legislature Of November 18th 1857, claws
of 1861, page 49, At the general election
In August 1860 he was elected to the office
BY popular vote, IN pursuance of the same
sct Under that election he has held the
office since November 1857, and still holds It.
In August 1869, Gov. Ashley appointed
and commissioned Fisk Auditor until the
next session Of the Council should be held.
Fisk took tho oath Aud gave bond and de-
manded possession Of the Office, which Rid.
gers refused. Fisk then brought suit under
the provisions Of the Civil Practice Act
The case involved only questions OF law
the facts rot being disputed. Warren, Dis.
srict Judge, tried the case. and decided that
Fisk was entitled to the Office, and that Rod.
gers wss not. Rsdgcn thereupon appealed
70 the Supreme Court.
The opinion of the Supreme Court 10
delivered by Judge Symcs, Judge Knowles
concurrirg. Judge Warren Il 10 understood
dissentsd. and stands BY bis opinion rem.
dsrcd - District Judge.
The opinion Of Judge symes 10 rather
long for publication in our columns, but
may be summed mp thus:
The act Of the Legislature Of November
10th 1857, 20 far ~ Il provides for the cleo.
ton by the Legislative Assembly, or by
popular vote, If Territorial Auditor, 10 In
contravention Of the Organic Act and void
Section seven of the Organic Act provides
that 1.-THE Governor shall nominate, and by
and with the advice and consent Of the
Legislative Council, appoint al officers not
therein otherwise provided for" The ONCE
OF Auditor 10 . Territorial once, end not
otherwise provided for in the Organic Act,
and hence must be filled by the nomination
Of the Governor and Ivy bis appointment by
and with the advice and consent of the
Legislative Council Therefore Rodgcrs was
not entitled 70 the Office.
The Court then consider the right Of
FIX to tho Office under the appointment
OF the Governor. and the greater part Of
the opinion 10 occupied In discussing this
question.
THE Governor shall nominate aad By and
with the consent Of the Legislative Couu.
ell, shall appoint etc." b the language Of
The Organic Act
The word nominate. the Court my, means
70 recommend for confirmation. The nomi.
nation alone gives no right 70 the sface
until the Council has confirmed the nomi
nasisn and the appointss hes been commits.
0ioned.
The language Of the Organic Act l. the
ssne ~ that OF Section 3, Article . of the
Federal Constitution, giving tho President
the power OF nominations and appointment.
But In the Federal Constitution In the
came Section there 10 clause, empowering
the President IL oil vacancies during . r..
esss Of the Senate. There 10 M such power
given the Governor in the Organic Act
BY the Acts 1t the Legislature of 1895
and 1857 the Governor was empowered 70
al v~cancies IN onloes h,ppening during
The recess of tho Legislature. Bat these
Acts wers repealed By The Act Of Dvcembsr
Sist. lee0, which provides that vacancies
shah b hllsd BY the 0ovesnos By and with
shs advice and consent OF he Council
AZ there 10 ~ express law giving sAs
Governor the power 70 1ll vacancies. nor
70 appoint except with the advice and con.
sent IT the Council, tho Court inquire II
each power does NOT necessarily pertain to
the Executive ofSca They conclude that
Il docs not In the present case. L might
b msintaioed In case Of the Presidest. IN
sosns instances, on the ground Of necessity,
~A AN -