The new North-west. [volume] (Deer Lodge, Mont.) 1869-1897, 1871-09-30

other, aud supreme In their legitimate
sphere If action, and neither department
can invade the other or rob 1t of any OF 10
rights or functions.
The Court. therefore, thinks that the
Tenure of Office Act. 20 fur - it attempts
TO limit. sbridge, or control the action OF
the Governor In the appointment and re-
mova1 of officers. Is in contrsvention OF the
Organic Act and void. But the Court say,
that rs the validity of the Act Of December,
1869, has not been attarked, and rs II Is not
necessary to hold it void for the purposes
Of this case. they pass to the consideration
Of the second branch Of the case.
The question is. who has the best right I"
the office-Barclay. without any ap point.
mcnt from the Governor. with an INSULT.
cicnt bond, and falling to give new bond
when lawfully required, thereby creating .
vacancy in the office; or Hickman, duly ap.
pointed and commissioned by the Governor,
with bond sufficient to secure the public
funds, and who has duly entered upon the
discharge of his duties? The Governor
alone has the authority to nominate and
commission the Treasurer. The person
who holds an appointment and commission
from the Governor, aud who enters on the
duties Of the Office. holds the Office under
color of right and law. This position 10
| fortified when We remember the constant
practice of the Executive of the United
States Of making appointment and issuing
commissions during the recesses Of the Sen
ate, and that officers 40 appointed'hsve all
the powers Of the Office. and hold by rs sc
cure q tenure. for the time being. - it con
firmed by the Senate Hence . commission
from the Governor, gives The person named
color of right and law to the office, snf
brings him within the provisions Of section
8 Of the Act of December eth, 1869, which
authorizes Courts to make an order allow
ing such de facto officer to perform the du'
ties of the Office until his successor is duly
appointed and qualified.
This opinion, the Court say, comes to this
That Barclay. having forfeited his right L
the Office. and Hickman, holding the SAM
under color Of right ami law is de Jtact
Treasurer. and entitled to receive the none,
in controversy, and the Clerk Of the Court
who has the money in custody, is orderc'
to pay it over to Hickman.
This settles the question to whom tn
the money Is to he paid. But the Court "a.
that all evidence that Gun ever be produces
to settle the rights Of the parties to the OF
flee of Treasurer. is now before the Cour,
and it would be inadequate justice to sin,
ply declare u whom the money shoull b
paid. Hickman asks In his answer that h
be dec.ccd to he Treasurer, &c. the qucs
ton ut the mOury necessarily involves tn
question of who Is Treasurer; the partie
have produced evidence and argued the cas-
upon this supposition; and, as = cour, u
Equity. having oil the parties and facts bt
fore it, the Court thinks it should not refus
the relief demanded, and thus comp,
another suit The litigation over this n.r'
ter has been disastrous; has tended to rui
the credit of the Territory. and to deprec
ate our indebtedness and increase taxation
Every interest Of the Territory demand
that the question of who is Terr:tori'
> Treas urer shall bs settled, and the Judic
airy should do NO act to continue this s;rii
when it is legally in its power to end It.
Therefore, the Court believing that the
have the right under the plendings in Il
case, AS we'll us by every principle Of cqui'
and justice. and feeling the abundant r
., sponsibility OF what they are doing, ndjud.
Hickman To he the legal and rightful Ire
. surer of Montana, and as such entitled
the possession of the books. papers an
property Of the Office. and to all the e,nol
mcn,s thereof. and that the books and r.
pers 1T the Office in Court he delivered /
the Clerk to Hickman, as Treasurer.