The Idaho world. [volume] (Idaho City, Idaho Territory) 1864-1918, 1871-03-30
IMPORTANT DECISION.
pREME COURT, IDAHO TERRITORY, JAN. TERM. 1871.


The PEOPLE En- Rel, J. W. HUSTON. Respondent, Us.
| A. HEED AND John G. HENLLY. appellants.
Appeal from the Third Judicial District Ada County.
Merritt, Priehet Foote for Appellants Preston d
| Huston, for Respondent.
The question involved in this case is, whether or
not the relator, who is admitted to have been ap.
pointed under the 10th section OF the Organic Act OF
the Territory, is the public prosecutor in all matters
of offence against the Territory, as we'll as all those
arising under the Constitution and laws OF the United
Statee which question Is presented by the demurrers
of the defendants to the REALTORS complaint and the
| stipuations OF the parties. s.t
The 10th section of the Organic Act OF the Terrific
ry provides THAT there shall be appointed an at
torney for said Territory, who shall continue in office
four years and until his successor shall be appointed
| and qualified. unless sooner removed by the Presi-
dent of the United States and who shal receive tbs
same fees aud salary the attorney OF the United
States for the present Territory Of Washington"
This is the only provision of law relating directly
to this officer, ana there appears TO be no law OF
Congress prescribing his dnties,-and in fact none
relating directly TO the duties OF any of the attorneys
appointed for the respective Territories of the United
States compelled 10 resort TO other sources
of information TO determine the question
The law districting the United States and prescrib
ing the duties OF the Judges was passed in lTs9 and
in that act il provided that there shall be ap
pointed in each district meet person. learned IN the
law To act as attorney for the United States in such
district who shall be sworn or affirmed 10 the faith
ful execution Of his Office, whose duty shall be TO
prosecute in such district all delinqnents for crimes
and offences cognZabe under the authority OF the
United States and all civil actions i'll which the United
States shall be concerned" From time to time. as
new districts were formed within the States similar
provisions made respecting the appointment Of
District Attorneys aud prescribing their duties.
The question. therefore. very naturally ARISES:
Where does the United States District Attorney for
Territory get the authority 10 appear attorney iii
Z 4
iuterestg'
He certainly claim right except that vested
in him by law. aud il would be violent presumption
To conclude that because he s IAN attorney for said
Territory" tn reiore he would have greater power
or authority than IS conferred by the general and
subsequent acts. prescribing generally what duties
District Attorneys shall perform, when the very Act
creating him such attorney is silent on the subject
except by implication, and that implication against
him.
The reator Is the attorney of the United States for
the Territory. which have right % coGclnde by
Implication from the fact that the act says that lie
shall receive the fees and salary the a,,or.
ney the United States for the present Territory of
Washington" The Organic Act Of that Territory Is
in the exact language Of our own. that there shall
be appointed al attorney for said Territory &C.
aud the Organic Act, under which the reator claims
desgnates the attorney for Washington Territory
1.-The attorney oI the United States. The designa-
i!on attorney for the Territory has been used By
Congress synOnomnnsly with attorney OF the United
States for the Territory" aud IL must ha presumed
that Congress meant one aud the same thing 10y ile
tgo forms of expression.
/, appears TO have been the policy Of the general
government for several years in forming Terri.
tories TO asmilaie them nearly possible 10 the
States. at the time rcserv!Rg that supervisory
control over them which il intended by that clause
in the Constitution which provides that Congress
shall have power Ia make all necd.nl rules and regu
ations respecting the territory of ihe United States
Congress has made what IL deems to bo. presume
all H,efl ruieF and regulations respecting this Ter
itory by the appointment OF certain officers. the pas
sage of certain laws and the creation Of Legislative
assembly with power extending TO all rightiul sub
jects Of legislation consistent with the Constitution
of the United States and the provisions OF the Or
ganic Act.
The legislative assembly a, i,s third session pro-
vded for three District Attorneys for the three several
districts OF the Territory. who to be the public
prosecutors within their respective districts in all
matters Of offence against the laws of the Territory
The legislative assembly at it's hfth session repealed
the OF the third and provided in lieu thereof that
there should BE- elected public prosecutor for each
county in the Territory. This last aot Congress
the i5th day Of jHiy. 1870, disapproyed of and an
nued. Congress. therefore. not only declared that
District Attorney should not be elected in each
county but dsapprovcd of and annulIcd that part of
the act OF the fifth session repeating the act Of the
third. which provided for three District Attorneys
and ii the repeal by the Legislature of the act of the
third session disapproved OF by Congress. as
necessary consequence the act of the third session
was virtually approved Of Whether or not the dis
approval by Congress of the repeal by the Legislature
its nth session. of the act of the third would have
the effect to renstate the act OF the third session,
do decide. The act Of the third session upon
the statute book for more than four years-and
similar act had been upon the statute book for two
years prior TO the one OF thrd,-and while Congress
had dsapproved Of laws passed by the Legislature,
and in instances restricted its power. this law
had not met with disapproval, while the very act
part of which repealed it. met with dsapproval az
once.
It will not be contcnded but that Congress might
provide that this officer should prosecute in all
where there should be violation of the laws of the
Territory but having failed to do while the duties
OF all other territorial officers have been prescribed
with the utmost particularly and certainty other
conclusion be arrived at than that the relator
would only be the attorney when the courts of the
Territory exercising their Jurisdiction as Cir.
cult and District Courts of the United States.
II certainly could not be maintained that viola.
ton of the laws passed by the legislative assembly
would be violation of the laws of the United States.
and IL such position would be untenabe. how could
the rclaor be acting las the attorney of the United
States the Territory" when prosecuting offenders
for violation Of Territorial lawsS
At the time of the establishment Of n Territorial
Government in Florida, IL was provided that there
shall be appointed In the said Territory two persons
learned In the law to act as attorneys for the United
States as well as for the Territory" There be
no doubt about the scope of the duties devoving
upon the two officers created by that act because they
were to act attorneys for the United States sce
as for tho Territory; that Is, they were to act for
both-their duties each to be dual-one of them for
East and the other for West Florida.
This serves to illustrate that Congress has at all
times in providing District Attorney for each Of
the Territories intended to make distinction be-
tween the prosecution of cases arising under the
laws of the Territory and those arising under the
laws of Congress- and in such appointments to con-
fer the two powers directly and distinctly when IL
was intended that both should be exercised In the
case of Florida, the discton was clearly indicated
by prescribing two duties for each OF the attorneys
OF that Territory to perform and II there be two du
tiaa urogscutors perform in the Terrific