The new North-west. [volume] (Deer Lodge, Mont.) 1869-1897, 1871-09-30
THE TERRITORIAL TREAsURERsHIP.
Decision sl Judge Wade.

Another case involving tho vexed qucs.
ton of the right to the Office Of Territorial
Treasurer has lately been decided In the
District Court of the FIRST Judicial District,
Madison county. i
Barclay. as We are informed, applied for
change of venue, which was not granted.
but at the request of Judge Murphy. Judge
Wade went to Virginia and heard the case.
The decision covers the whole merits of the
case, and the points decided apply to the
Office Of Auditor as well rs Treasurer. The
opinion of Judge Wade is published in full
in the .Nontan.an of the 2lst inst 1t is
rather long for our columns, but the follow
ing summary will show the facts found and
the points Of law decided by the Court.
In August, 1869. Barclay was elected
Treasurer under law of the Legislature.
He took the oath of Office and executed
bond with securities for S25,OOV, which he
presented to the Secretary Of the Territory
for filing and approval. The Secretary has
always refused to file or approve the bond.
In November, 1869. Barclay assumed the
duties of the office, and continued to act Us
Treasurer up to July, 1871. In May, 1871.
the Secretary notified Barclay that his bond
was insufficient in amount, and as to the
sureties, that he Uhc Secretary had in
creased the amount TO $4,000, and he re-
quired Barclay to give ne:y bond for that
amount. with sufficient sureties, within ten
days. At the request Of Barclay this time
was extended to July 10th. 1871. Barclay
never renewed or offered to renew his bond.
| The Secretary then notified the Governor
of Barclays failnrc to renew his bond. and
| that the Office Of Treasurer was vacant.
Thcrcupon the Governor appointed r. o.
Hickman, Treasurer, subject to the advice
and consent of the Legislative Council; and
Hickman took the oath and gave bond ~
required by law, and the Governor commits
stoned him. Hickman notified Barclay OF
his appointment. and demanded possession
of the books and property Of the Office, but
Barclay refused to deliver them. Barclay
however, left the room he had occupied rs
an Office. taking with him the books and pa
pers, and Hickman took possession Of tho
room.
In August last the Treasurer Of Madison
county commenced an action in the District
Court. ut Virginia, against Barclay and
Hickman. alleging that he hal in his hands
money belonging t. the Territory; that
Barclay and Hickman each claimed to be
Territorial Treasurer, and entitled to re.
ceive the money. and asking that Barclay
and Hickman intcrplpad and settle their
righ. to receive the money. Barclay and
Hickman answered separately, each claim
ing to ne Treasurer. and Hickman also ask
ing that he be adjudged entitled to the of
flee and the property belonging to it,
Il. this case decree Of interplesdcr was
made, ordering Barclay and Hickman to
interp!cad and settle their rights to the Of.
fee In accordance with this decree, Oar
clay filed his complaint. setting forth his
claim to The Office. and Hickman flled bis
answer, stating the facts on which he rested
his claim. On the complaint and answer
the case was heard. and the facts fouEd t.
be a. stated Ove.
The Courts say the questions for theil
decision are:
LIST. Did Barclays failure to renew hi
official bond, Is required by the Secretary
create vacancy in the of.ice of Treasurer
and did Barclays official power then cease
End. If the Office was vacant had tn
Governor authority 10 fill it by appointment
during the recess OF the Council?
As to the first point, the Secretary is, b,
act of the Legislature of Dec. 3, 1867. tn
Gust ,dian of the official bond of the Urea
surcr, and is invested with unlimited powc
in regard to ii. He may demand that TIL
amount of the bond be increased, and I'd
ditional suretics be given. Tie giving y
the bond required Is a condition prccelcn
: 10 tie performed before the appointce he
comes Treasurer in fact The act Ut tn
Legislature Of December 9Th. 1869. provide
that if the Treasurer fail 70 give Or renew
. his official bond rs required by law, the o1lc
shall become vacant. As the person mp
pointed does not become Treasurer until b
has filed his bond to the satisfaction Of tn
Secretary; 80 ii he fails to renew his hon,
when required. he ceases To be Treasurer
Hence when Barclay failed to comply wit
; the demand of the Secretary to renew hi
official bond, tue Office Ut Treasurer bccam
: vacant. The Secretary WAS not OBLIGED I
D file and approve the first bond before b
could demand renewal 0f It. 1t would b
. . inconsistent and useless to require him
approve bond he knew to be worthless
: To the argument that the net Of Decembe
eth, 1869. community called the Tenure q
Office Act. (sec. 81 keeps Barclay In oflc
without the necessity Of any bond. ID
Court say that such was not the intention
: Of the act. Section 5 of the same act d.
|, clares tina, failure IN give bonds creates
vacancy, and after vacancy has occurred
J the officer failinyt' give bond l. not .
Jact0 officer NOR m officer Of any kind.
|. The Court then considers the secDn
question. ~ to the power Of the GOvernG
Z u appoint Territorial ofllc> = during the y
= cess OF the Council .#H
The Legislature cannot abolish the ofnc
IF Governor. mr. ahTidge or limit bis riyh'
. or duties = defined BY the Organic Aci
+ .AAss,sn sarAnse.ks.an IL Nsaan1A d