The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1881-02-25
THE MANDAMUS CASE.
Judge TWiss Delivers His Opinion
and SustalRs the Demurrer.

. At . o'clock on Thursday after
h noon, quite a large number of per
e sons assembled in the District Cour
: room to hear the decision of Judge
TWiss III the mandamus case
+ Among others present were Hon
d John 7. Caine, who, with Hon. w
J II. Hooper has acted for Hon. Geo. Q
: Cannon all through this case, Sec
l rotary Thomas, the respondent as
acting-gOvernor; a. G. Campbell
: who has been given the certificate,
the attorneys, and many others, who
were all inside the bar enclosure.
: Outside there was also large num-
5 Der of persons. 4 little business
, was transacted before Judge Hun
} Ter, and when this was finished,
= Judge Twiss took a seat on the
2 bench beside Judge Hunter.
l lie commenced by briefly stating
2 that the second and fifth grounds of
the demurrer would be overruled,
5 and briefly gave reasons for so do
ing; and that the other three would
be sustained. He said two of the
points in the demurrer went to the
| heart of the matter and on these
, points he had reduced his opinion
: to writing, which he read as fol-
lows:
The alternative writ of mandamus
charges that at the last general
election the relator received by
large majority, the greatest number
of votes cast for delegate to Con-
gress; that he was a resident of this
territory, and qualified to receive
votes for said office, and to be de-
clared elected thereto. That due
demand was made upon Eli III. Muir
ray, governor of this territory, that
he declare the relator elected, which
demand was refused; that subse-
lquently, on the Sth day of January,
1881, said Murray left this territory,
whereby the respondent became the
acting-governor. That on the 9TH
day of February, 1881. demand was
made upon him to declare the rela-
tor elected to said Office, and to issue
a certificate accordingly, which was
refused. That he has no plain and
adequate remedy in the ordinary
courts of law. The respondent is
therefore commanded to declare
George @. Cannon elected to the
office of delegate to the House of
Representative for the FOrty-Sev-
enth Congress of the United States,
and to issue a certificate accordingly,
or that he show good cause before
this court.
To this alternative writ the re- |
spondent demurs, and assigns among
other reasons or grounds of demur-
rer the following;
THAT said writ does not state |
facts sufficient to constitute a cause |
of action, or sufficient facts to en-
title the plaintiff to peremptory |
writ of mandate, and
That this court has no jurisdiction |
of the person of the defendant in
said official character on the subject |
of this action"
This position of the respondent
raises the bald, naked question of
the right of this court to direct the
Governor of this Territory in the
performance of an executive duty.
The solution of this question has re-
quired an examination of a large
of authorities; although
some of them seem to be IN conflict
with others, it will be found, think
upon a close examination, that but
few are really in conflict with the
of authority. The
act required of the respondent by the
alternate writ is quite dissimilar to
the ordinary duties of a board of
or the canVaSSerS of
returns. The two Missouri
cases, SO Mo, SIS and 65 Mo-, 4SO, re
lied upon by counsel, clearly show
the different character of the duty of
election canvaSSerS and the act of
Jhe executive in declaring one
among all other persons to be the
one elected; in one case it is an act
clerical in its nature, performed by
an inferior officer whose duty is
specifically assigned to him either
by his superior or by the statutes,
and is purely ministerial; in the
other case the duty is one of many,
upon the executive solely
for the reason that its performance
s properly within the sphere of eX-
9cutiYe powers and obligations.
Section 1862 of the United States
Revised Statutes, 1878, provides
hat the delegate to Congress shall
De elected by the voters in the terri
DRY qualified to elect members of
he Legislative Assembly" But
neither this nor any other statute,
federal or territorial, directs or in
my way indicates how he shall
or upon what evidence
he shall determine who is elected.
lie is left to his own method of
solving the question. In some
'ases there may be no difficulty OF
question; others may be in
ricate and full of difficultieS,r equir-
ng the best of judgment and discre-
ion in determining who is elected.
It matters not that in one particular
Instance, one candidate may receive
.Wenty times us many votes as all
others, it is the rule of law that APP
)lies in all cases, that is to guide the
court. If the judiciary can inter-
ere in one case, it may in any,
whenever in its opinion the eXecu-
i've is pursuing, or about to pursue,
| course contrary TO the views of
he court. If the duty of the gov
,rnor in determining who has the
greatest number of votes thrown by |
he voters of the territory qualified |
% elect members of the Legislative
Assembly, and the issuing of the GER
ificate of election, is not a judicial
lct, it is far from being merely min
it is at least an executive
luty of political character, which
nay at times require the best and
oundeSt discretion. The State of
Nevada &c rel. Selden Hetzel Us. the
Board of Commissioners, s New.
100. i
1 have thus far referred mostly to
he territorial laws, and to the spe-
,ial provision of Congress. We will
low look at some of the opinions of
he federal and state courts, invOlv-
ng the same or similar questions.
The federal constitution creates,
md the organic and statutory laws
If this territory recognize the three
treat coordinate branches of the !
the legislative, eXecu-
i've and judicial, but no attempt has
leen made to define with any Spe-
,ial care, the nature or extent of the
powers of either. Care, therefore 1
n all cases, near the extreme limits
If the powers of either department,
should be taken, lest we trespass