Arizona citizen., 1876-10-07

A tNANS S- lNAA-" Ho N7 A~-''4 search among decided cases can make it. But in all of these cases the sub ject matter is entirely different from that of the case now before me The matter there was franchise, money, property, vested rights and the like in this case the subject matter is pOlit- ical or at best purely legislative in ils nature. character and substance, and 1 am asked to grant an injunction upon hearing in Chambers, which, if grant ed, must be permanent to the final de termination of the case; see Natoma W. and NJ. Co. vs. Parker ct al, 16 Cal. the 1l6 section, page 403, Compiled Laws of Arizona being indentical with the California Statute under which the above decision was made. I am en- tireiy clear tha it cannot be done
 In the majority of governments, and more especially in former times, the counts neither claimed or had any power to pass upon Legislative acts, to determine their validity CI invalid ity, and since the existence of our American governments. under written constitutions, this power has been questioned and contested tO more or less extent But our constitutions are laws, supreme and paramount, but still laws, and the ultimate cons truction and adjustment of conflict ing laws rests on the judiciary of the country. Notwithstanding this, many cases may and do arise which courts cannot reach. The question of the right of a member of a Legislative body 10 a seat in that body, may and often does involve the incest questions of law, but the courts cannot reach or interfere with. entertain or decide these questions of law.
 The alleged matter of complaint here is, a census return showing a number of inhabitants of Yavapai county exceeding the actual number. These returns make the number tO be 13,66l, as the bill alleges, and the bill alleges that the actual number Is 3363. This is sole cause of complaint All other wrongs and grievances mention cd in the complaint flow from this cause There would be no cause or complaint, on part of Plaintiff, if the census returns exhibited the latter number instead of the former. The court of this district is asked to sup press these returns as fraudulent and void or to reform the same so as to conform in numbers to the actual num- Der of inhabitants of the aforesaid county, that is to say, that judgment of this court may be had to that effect. 1 have, to say the very least. grave doubts of the power of the court to canvass or recanvass these returns The law of Congress has placed the whole matter with the Legislative Assemblies of the Territory. and these assemblies have placed it with the Board of Supervisors of Yavapai and the Secretary. Can this court in the absence of any statute law on the subject canvass or recanvaSs these re- turns: do not propose to decide this question now, but whatever may be the power of the court in thiS mat ter the conclusion is irresistible that as judge in chambers, until such time as 1 shall be free from doubt on the matter. no permanent injunction can
 be granted by me in my said capacity as Judge.
 Here I might pause in this croceed ing, but in view of the great import ance of this case to the people of thi, Territory and also to the pubic al large, and in view also of the paucIty of statutory law which necessarily exists in the Territories, and the wan of fitness of such statutes compared
 with those of the States, especially ir
 matters of practice, causing as I hay, reason to believe much veXatiOus anC annoying embarrassment to member.
 of the bar, however learned. and als, , in view of the newneSs of practice iI
 this Territory, I deem 1t but just C both parties to here consider at leas briefly the objections urged agains ! the bill In case the two points abOv, i reserved shall be finally held in favo | of Plaintiffs side of the case, ther.
 can be doubt that the bill shows som ] grounds for equitable relief. I do no
 think that the Secretary of the Terri tory will be acting in a ministeria
 capacity only, or as the agent of th,
 Legislature simply and only, for th,
 purpose only of making a numerical
 calculation, but on the contrary tha
 such action calls for some discretion
 ary if not Legislative functions.
 think the complaint is properly signe,
 and the form at the jurat sufficient 2 Nor is there any thing in the obieC
 ton that the verIficatiOn was taken b
 one of the attOTnies of record in th case. As to the parties defendant il
 the bill I see no defect or misioinde
 whatever. It may be that it is unnece,
 sary to make any other than the SeCrJ | tary a party defendant in this bill. lou
 as the bill charges fraud in takin
 and returning the census of Yavapa
 county by the supervisors of that cOur I ty, the supervisors of that county ar certainly proper parties if not sJricl I necessary parties. As to the partie
 plaintiff it is objected that the con ] plaint does not show that the relat0r
 were authorised by the proper officer of the Territory to bring the action i .. it's name. and that the Territory IS no proper party to such a proceeding
 The office of Attorney General of th ! Territory is vacant; there is no sue !. officer. I am clearly of opinion tha
 with or without such Territorial att0I ! ney, the use of the name of the Tel ,. ritOrv in this action as plaintiff ?, ]. quires some kind of stratutOrv authOrit Co enable these or any other rel. -t tors to use the name of the Terriior ?. as such plaintiff therein; that withoU such statutory or other legal authoriZ. - ton the name of the Territory cannC [. be SO used that is, neither the Territ0r
 nor the people of the Territory can b . made a plaintiff in any case withou -| express law tO that effect r there b . no such law the bill of complain, i 2 this ease cannot be sustained in i' -I present form. An action can be maiI tained in the absence of such law b | one or more citiZeLs and inhabitan' . of ihe Territory, suing in behalf (